See Disclaimer Below.

Archive for the ‘Humanities’ Category

How Much Legislative Power Do Judges Really Have?

In America, Arts & Letters, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Western Civilization, Western Philosophy on February 14, 2018 at 6:45 am

This article originally appeared here in The Intercollegiate Review.

During his confirmation hearing last year, Justice Neil Gorsuch told Senator Dick Durbin that Roe v. Wade was “the law of the land.” A recent Washington Post headline declared, in light of Obergefell v. Hodges, “Same-sex marriage is the law of the land.”

What does it mean that opinions of the United States Supreme Court are the law of the land? Is an opinion of the Supreme Court a law? If so, do judges make law? If judges make law, thereby exercising legislative powers, wouldn’t they be legislators, not judges?

If Supreme Court opinions are laws, how can they be overturned by later justices? Were the overruled decisions never actually law to begin with? Were they temporary laws? Were the American people simply bound for years by erroneous rules or judgments?

Ask these vexing questions of ten experts in constitutional law and you’ll hear ten different responses.

Why so complicated? Perhaps because the framework of American government is at stake. Centuries of political theory, moreover, cannot be condensed or expressed in concise opinions involving particular issues about fact-specific conflicts. Judges and justices are not positioned to delineate philosophical principles with nuance and sophistication. Yet they are tasked with administering the legal system and are guided by deeply held convictions or inchoate feelings about the nature and sources of law.

When we debate the role of judges vis-à-vis the legislative or executive branch, we’re invoking the separation-of-powers doctrine enshrined in the U.S. Constitution. That doctrine derives principally from the theories of Locke (1632–1704) and Montesquieu (1689–1755).

In his Second Treatise of Government, Locke claimed that the preservation of society was “the first and fundamental natural law.” Today we worry about the corruption and incompetence of members of Congress, but in Locke’s era, when the monarch exercised extraordinary powers, the legislature was a bulwark against tyranny. It represented the will of “the people.” The preservation of society thus required robust legislative authority.

“This legislative is not only the supreme power of the commonwealth,” Locke intoned, “but sacred and unalterable in the hands where the community have once placed it; nor can any edict of anybody else, in what form soever conceived or by what power soever backed, have the force and obligation of a law which has not its sanction from that legislative which the public has chosen and appointed.”

Why must the law emanate from the legislature? Because the legislature, in his view, embodied “the consent of the society over whom nobody can have a power to make laws.” Locke’s paradigm holds, accordingly, that the legislature speaks for the people, from whom legitimate government obtains its limited authority; legislation reflects a general consensus among the people about controlling norms, beliefs, and values. The judiciary is curiously absent from this paradigm.

Montesquieu articulated a tripartite model of governance, adding the judiciary to Locke’s calculus. He argued that a state of political liberty would not exist if any of the three branches of government—executive, legislative, or judicial—arrogated to itself powers belonging to another branch. The branches competed, effectively offsetting their respective powers through checks and balances.

Montesquieu and Locke were among the most cited thinkers during the American Founding. They were indispensable sources for the framers of the U.S. Constitution. The first three articles of the Constitution establish our three branches of government.

Concerns about the scope and function of judicial power have begun to divide legal scholars on the right. On one side are proponents of judicial restraint as practiced by Robert Bork, William Rehnquist, and Antonin Scalia; on the other side are advocates of judicial engagement, which calls for a more active judiciary that strictly enforces restrictions on government action.

The judicial-restraint camp contends that the judicial-engagement camp would have the judiciary infringe on legislative authority in violation of the separation-of-powers mandate. The judicial-engagement camp contends that judges deferring to political branches often abdicate their duties to enforce not only the constitutional text but also unenumerated rights allegedly inherent in that text.

The view that judges cannot make law is increasingly unpopular. “The dubious aspect of separation-of-powers thinking,” Richard Posner says, “is the idea that judges are not to make law (that being the legislator’s prerogative) but merely to apply it.” Posner submits that “judges make up much of the law that they are purporting to be merely applying,” adding that “while the judiciary is institutionally and procedurally distinct from the other branches of government, it shares lawmaking power with the legislative branch.”

If Posner is right, then Montesquieu’s trifurcated paradigm collapses. That, or our current system is not maximally amenable to liberty as conceived by Montesquieu.

Parties to a case generally recognize judges’ rulings as binding. Courts and institutions generally accept Supreme Court decisions as compulsory. Even individuals who defy judicial rulings or opinions understand the risk they’re taking, i.e., the probable consequences that will visit them. Judicial rulings and opinions would seem, then, to be law: they announce governing rules that most people respect as binding and enforceable by penalty. If rulings and opinions are law, then judges enjoy legislative functions.

Yet the natural law tradition holds that law is antecedent to government promulgation—that indissoluble principles exist independently of, and prior to, pronouncements of a sovereign or official. On this view, the positive law may contradict the natural law. Which, then, controls? Which is the law, the one you’ll follow when push comes to shove?

Your answer might just reveal how much legislative power you believe judges really have.

Advertisements

Session Seventeen: Richard Bulliet on the History of the World

In Academia, Arts & Letters, Eastern Civilizaton, Historicism, History, Humanities on February 7, 2018 at 6:45 am

Here, in the seventeenth lecture of his course, The History of the World, Richard Bulliet discusses Inner and East Asia (400-1200 C.E.):

Session Sixteen: Richard Bulliet on the History of the World

In Academia, Arts & Letters, Christianity, Historicism, History, Humanities, liberal arts, Western Civilization, Western Philosophy on January 31, 2018 at 6:45 am

Here, in the sixteenth lecture of his course, The History of the World, Richard Bulliet discusses the Emergence of Christian Europe (600-1200 C.E.):

Session Fifteen: Richard Bulliet on the History of the World

In Academia, Arts & Letters, Christianity, Humanities, Teaching, Western Civilization, Western Philosophy on January 24, 2018 at 6:45 am

Here, in the fifteenth lecture of his course, The History of the World, Richard Bulliet discusses the Emergence of Christian Europe (600-1200 C.E.):

Session Fourteen: Richard Bulliet on the History of the World

In Academia, Arts & Letters, Historicism, History, Humanities, Islamic Law on January 17, 2018 at 6:45 am

Here, in the fourteenth lecture of his course, The History of the World, Richard Bulliet discusses the Rise of Islam (600-1200 C.E.):

r

 

 

Session Thirteen: Richard Bulliet on the History of the World

In Academia, Arts & Letters, Eastern Civilizaton, Historicism, History, Humanities, Islamic Law, Pedagogy, Western Civilization on January 10, 2018 at 6:45 am

Here, in the thirteenth lecture of his course, The History of the World, Richard Bulliet discusses the Rise of Islam (600-1200 C.E.):

Daniel James Sundahl Reviews Sara Baker’s “The Timekeeper’s Son”

In Arts & Letters, Book Reviews, Books, Creative Writing, Fiction, Humanities, Literary Theory & Criticism, Novels on December 13, 2017 at 6:45 am

Daniel James Sundahl is Emeritus Professor in American Studies and English at Hillsdale College where he taught for over 32 years.  Prior to retirement, he was Kirk Distinguished Professor in American Studies. He’s relocated from Michigan to South Carolina.

These days one can enroll in creative writing programs with coursework or workshops in narrative medicine, poetic medicine, expressive writing and even medical humanities.

It’s an interesting notion likely connected to “coming of age” stories, “family dynamics” stories, all to be told with within expansive and insightful narratives which apply to all fields of “work” and of course what it means to be human with an examined life. Storytellers, after all, are interpreters in professional and cultural environments.

What would be the point?

Narrative as healthcare can be the point especially since stories help build empathy, mindfulness, and are diagnostic tools.  Imagine for a moment a healthcare professional addressing an illness.  How quick and easy to venture into remote hypotheticals.  How better to address the illness through narrative, the interior experience of deep inquiry, confronting the illness as a story.

I mention this since it seems the way to address a review of Sara Baker’s The Timekeeper’s Son, a novel which asks the reader to recognize, absorb, interpret, and bear witness to a young man’s “difference” and his family’s dysfunction.

Why?

It can be used to explain motivation, even what organizes a novel’s plot or narrative development.

Here’s some context. I once sat with a student attempting something basic—how to use a dictionary.  It was fundamental, alphabet, phonetics, and a dictionary entry.  I gave the young man a word and then handed him the dictionary with the simple request: Look for the word which I had just sounded out.

He was flummoxed and looked at me and said, sweetly, “I don’t know how to use the air conditioner.”  The issue was severe dyslexia.

There’s a kinship between this small narrative and Sara Baker’s novel: In a Georgia small town, Josh Lovejoy, whose aspiration in life is to become a filmmaker, drives home late at night uncharacteristically “high.”  Accidentally he hits a jogger, David Masters, placing him in a coma.  In all likelihood, Josh owns some hidden disabilities, living as he also does in a fragile household.

The incident is shattering, more so because Josh is already estranged from his father, who sees little value in Josh’s aspirations.  The consequence of living with a “distant” father is Josh’s loneliness and lack of self-worth.

He’s adrift at an important moment in his life and culpable for the accident.  He takes up his court-ordered community service while waiting to see if his culpability will change when and if David Masters dies.  Josh works at the Good Shepherd School for Disabled Children.

Baker places the reader, then, in the heart and soul of a troubled young man; the plot, however, is diagnostic, addressing not only the Josh’s “troubles” but the delicate equilibrium of his family and the Masterses’ family.

It’s a “case study,” in other words; Josh’s father is a clockmaker whose sense of things is more devoted to the timepieces he keeps running but with the same disinterestedness he brings to his family life.  His “shop” is the place to which he retreats.  Josh’s mother, on the other hand, is equally preoccupied if not depressive.

In the novel’s time, then, as those hidden disabilities and wounds emerge against the background of the claims and limits of community, Josh faces a certain kind of annihilation which would include the “good” that’s in his heart.

Judge Andrew Napolitano’s 2017 Commencement Address at Faulkner University Thomas Goode Jones School of Law

In Academia, Arts & Letters, Christianity, History, Humanities, Jurisprudence, Justice, Law, Law School, liberal arts, Libertarianism, Philosophy on December 5, 2017 at 6:45 am

What Is Magna Carta?

In Arts & Letters, Britain, History, Humanities, Jurisprudence, Law, liberal arts, Western Civilization, Western Philosophy on November 29, 2017 at 6:45 am

Interview with Cyrus Webb Regarding “Of Bees and Boys”

In Arts & Letters, Book Reviews, Books, Creative Writing, Creativity, Essays, Humanities, Literature, Southern Literature on November 22, 2017 at 6:45 am
%d bloggers like this: