Dispatches from the Creation Wars

Susan Jacoby has a pretty good essay at TomPaine.com about anti-judicial rhetoric and how it is damaging our system of law. Part of the essay focuses on Judge Jones and quotes a particularly wise statement from him:

“But I submit to you that as citizens, we do not want and cannot possibly have a judiciary which operates according to the polls, or one which rules based on who appointed us or according to the popular will of the country at any given moment in time.”

Hear, hear. The courts were designed specifically not to be beholded to popular opinion. The founders saw that as one of the most crucial checks on the government’s ability to exert illegitimate authority. As Hamilton put it in Federalist 78, without the complete independence of the judiciary and their ability to strike down all legislation “contrary to the manifest tenor of the Constitution”, all of the rights specified in that Constitution “would amount to nothing.”


  1. #1 Corkscrew
    August 16, 2006

    I remember that the Athenians, round the time of the Pelopponesian war, had a nasty habit of executing or exiling their generals in a fit of collective pique, and only later thinking “oh shit, we didn’t want to do that”.

    When I read this, I was extremely glad that our modern judicial systems are relatively immune to this lynch-mob approach. These people who think that judges should do whatever the screaming masses say obviously haven’t studied much history…

  2. #2 Rhampton
    August 16, 2006

    Remember Bork’s Inkblot?

    Dissolving the Inkblot: Privacy as Property Right
    Cato Policy Report, January/February 1993

    …To the liberal claim that laws against contraception and abortion fall to the due process clause of the Fourteenth Amendment, Judge Robert Bork responds that due process refers only to procedures and that “substantive due process” is a contradiction in terms. Finally, Bork finds no case for privacy in the Ninth Amendment, which he says is as obscure as it would be had an inkblot covered it on the original parchment.

    …Bork’s real objection is to any holistic reading of the Constitution. Instead, he favors what John Hart Ely called a “clause-bound interpretation.” The idea is to read each guarantee in the Bill of Rights as if no others existed, taking care not to acquire any cumulative sense of what the Framers had in mind. That is a dubious theory of interpretation, but in at least one case Bork is not “clause-bound” enough: he prefers to read the Constitution as if the Ninth Amendment wer not there.

    …Thus, both the liberals and the conservatives misunderstand privacy. The conservatives engage in a narrow and unnatural reading of the Constitution in order to avoid seeing what they do not wish to see, while the liberals find in the Constitution not penumbras but a Rorschach test that reveals only what they wish to see. In both cases it comes down to an inkblot. Both approaches allow their adherents to disparage most freedoms and exalt the few freedoms allowed by their respective moral and political philosophies.

  3. #3 Jim S
    August 16, 2006

    And of course this is also why electing judges is a bad idea. I fail to understand why someone thinks it is a good idea to have someone sitting on the bench who might have to rule on a case involving someone who donated money to the judge’s campaign.

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