Sunday, September 04, 2005

The good result/bad law fallacy

The lonely libertarian has been watching a bit of CSPAN’s Washington Journal this morning, and there’s been some debate about the nomination of John Roberts, and the Rehnquist vacancy on the court. As reporters tend to do, the ones on this program told the host that it was very important to know what Roberts’s (or any nominee for that matter) position was on abortion, Civil Rights laws, and Environmental laws.

One of the reporters specifically wanted to know about Roberts’s personal opinion on the Civil Rights laws of the 1960’s. Of course, judge’s personal opinions really don’t matter. The entire purpose of an apolitical judiciary is precisely so the judges can avoid such controversial political questions. For Supreme Court nominees it’s much more important to know candidates views on the interpretation of the Constitution. Provided personal views don’t cloud their views of the law, a judge’s personal views should be of no concern.

Abortion in particular is a tricky case, as there is no explicit right to privacy in the Constitution, and even if there was, it could be argued that such a right has nothing to do with legalized abortion. And even Federal Civil Rights laws could be found Unconstitutional for those who choose to anchor their commerce clause jurisprudence in the pre-New Deal period. (Which, in case you were wondering would be no one on the current Supreme Court.)

The problem is, as the lonely libertarian has stressed time and time again, the mainstream media regards Constitutional law as a result oriented process. Constitutional law is not about results, but about interpreting the Constitution. When looking for laws to achieve specific results, look to Congress. The Constitution provides a framework. It was very specifically not designed to achieve specific results. If you find that framework untenable, it can be changed through the amendment process.

If a judge believes that the Constitution limits the ability of the federal government to pass environmental laws, or pass laws about guns in schools or laws about violence against woman, those views on what the Constitution says should not be a reflection on the judges personal views on the intent of these laws. To make things simple to understand, Congress can not pass a blanket law against murder, because it has no power to do so. As well intentioned as such a law might be, such good intentions do not make a blanket federal murder law Constitutional.


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