Doug, ``Fascinating distinction.''
The distinction is that law as a rational system is under a specific rule to be both consistent and free from self-contradiction. Politics is under no such proscription.
But it is this understanding of law which I find so problematic.Law is not, in practice, "consistent and free from self-contradiction." Further, I would assert that it can not be. The notion that it is or can be such, is, IMHO, a 'rationalist' error. Law is not a mathematical system of 'pure or abstract logic'; it clearly involves interpretation, with all that entails. Even a Posner understands that. As I noted yesterday, what fascinates me about constitutional law is the way it functions at the nexus of politics and philosophy, power and principle. Its rules are simply not all that precise, much non-contradictory.
I think that Nathan and Justin have been the objects of some overstated and undeserved criticism in these law threads the last few days. But where I differ from them is in their tendency to see law in the tems Chuck describes above. [I think it is only a tendency, which conflicts with other countervailing tendencies in their arguments.] Perhaps it is a necessary correlate of undergoing a law education and entering into a career as a law professional, but I find that they accept too easily the idea that there are straightforward, relatively unproblematic ways to understand and thus defer to legislative language and intent -- what Nathan has described as his judicial philosophy of restraint and Justin has called his judicial conservatism.
I find constitutional law a lot more messy, and even somewhat arbitrary at times: I am not so convinced that the likes of Bush v. Gore is such a deviation from the norm. I don't know if it is a function of my intellectual background in political philosophy with a distinctly non-analytical bent, but I see contradictions and multiple possibilities in places where Nathan, for example, does not. Take, for example, what Nathan deplores as a recent string of conservative "judicial activism" on the part of the Rehnquist court: the striking down of federal laws, in whole or in part, involving gun free safety zones around schools, violence against women, age discrimination and disabled rights. For Nathan, this is judicial activism because it involves striking down federal laws, written with judicial precedents in mind, in instances where no fundamental individual rights are involved.
But the federal government's authority to legislate in these areas, which would fall under state and local government jurisdiction in virtually any 'plain language' reading of the Constitution, rests on a very thin reed -- the commerce clause. [Congress has the power "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes."] Starting in the New Deal, an interventionist role for the federal government was fashioned around this clause, with an ever expanding definition of interstate commerce. By the 1960s, civil rights legislation was defended in terms of the regulation of interstate commerce. All of the laws listed above were based on this constitutional ground: as implausible as it may sound on the face of it, Congress contended that it could pass laws prohibiting guns in schools and violence against women under its constitutional authority to regulate interstate commerce.
Now, one can plausibly argue, as Nathan has done, that by overturning 50+ years of precedent involving upholding the expansive definition of Congress' power to regulate interstate commerce, the Rehnquist Court was engaging in "judicial activism." But a no less plausibe interpretation, in my view, is that the Court had been engaging in "judicial activism" for a half century or more by allowing so loose a definition of this clause as to include virtually any area Congress decided it wanted to legislate upon. This could be seen as a rather major violation of the division of powers under the constitutional system of federalism, and the Court's recent spate of decisions could be defended as restoring "judicial restraint," returning to a clear, plain language reading of the Constitution.
In short, there are many different ways to understand "judicial restraint": deference to the will of legislatures, deference to past precedent, deference to the plain meaning of the Constitution. Almost every advocate of "judicial restraint" calls for some combination of the above, but these different guides can, and often do, come into conflict. Even if one subscribes to deference to the will of legislatures alone, one is faced with the problem of which legislature one should defer to in a federal system where powers to legislate are divided. This is not a system capable of being consistent and free from self-contradiction.
[By the same token, those who argue that the judiciary simply reflects the interests of the power elite/ruling class, are, in their own way, making an analagous error. In their own way, they posit a system which is always consistent {always on the side of the powerful}, and free from self-contradiction {never varying in its faithfulness to the rulers}. Again, I find a much more inconsistent, pliable and contradictory system at work.]
And all of these questions are clearly embedded in politics: it has been the federal government, with very few exceptions, which has been the primary engine of progressive legislation. Battles over federalism are battles over the extent of its power to continue to play that role. No one should think that the battle of federalism does not involve some very high stakes.
Leo Casey United Federation of Teachers 260 Park Avenue South New York, New York 10010-7272 (212-598-6869)
Power concedes nothing without a demand. It never has, and it never will. If there is no struggle, there is no progress. Those who profess to favor freedom, and yet deprecate agitation are men who want crops without plowing the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its waters. -- Frederick Douglass -- -------------- next part -------------- An HTML attachment was scrubbed... URL: <../attachments/20010517/8ae16648/attachment.htm>