Thursday, February 09, 2006

Political footballs and constitutional law - Los Angeles Times

Political footballs and constitutional law - Los Angeles Times

The above link to Rosa Brooks’ article in the Los Angeles Times, Political Footballs in Constitutional Law, discusses the current lack of clarity in the field of constitutional law. Brooks points out that Lawrence Tribe is not publishing a revised version of his constitutional law treatise because he “can no longer figure out how to write a treatise on constitutional law.” Tribe is well-known as a constitutional law scholar. But he has admitted on occasion that he has no coherent philosophy of law. He basically decides what outcome he wants in each individual case and then comes up with whatever argument may seem to justify that outcome. Sometimes Tribe argues for the plain meaning of the Constitution like a loyal textualist. Other times he completely rejects the obvious meaning of the Constitution and takes a radical post-modern approach seeking through law power to create due rights or destroy traditional ones present in the text. At other times, Tribe may make arguments from the common law or ignore the common law. He is a chameleon who matches his color to the background he wishes to inhabit. Tribe is not alone.

In our post-modern age, the use of philosophical coherence, principle, and a systematic philosophy is becoming less and less common. But this is not the great liberating feature that post-moderns claim. Instead, the lack of objectivity and the lack of stability create additional tension, violence and conflict, since there is no principled way for parties to argue their way to a common solution if the only thing they have behind their arguments is sheer desire.

Brooks interestingly enough concludes that “constitutional interpretation is best understood as a form of theology rather than law.” Certainly I have to agree that in reality, constitutional law is tied to theology. A constitution is the fundamental law of a nation. But constitutions are dependent upon the natural law for their authority and existence. Natural law in turn is a reflection of general and special revelation. General and special revelation reveals the character, nature and will of God Himself. So to make a long story short, all law is in some way connected to theology. Constitutional law more so because it is a step closer to theology than, say, statutory law or case law.

Once understood this way though, the result can be the return of relative certainty. There are basically three kinds of situations of interpretation. One if where the human law is clear and there are no moral implications to the application of the human law. In that case, the natural law and the Constitution usually require us to merely apply the plain meaning of the human law. If the law in question is the Constitution, and the meaning of the Constitution is clear and carries no major moral baggage, then it is clear that the plain meaning of the Constitution should be applied unless and until it is amended according to the appropriate processes.

The second category is where the positive statements of human law may be clear, but they run into problems with a higher law. For statutes or case law, the Constitution is such a higher law. For the Constitution itself, the natural is also a higher law. Human laws have to be interpreted and applied so as to stay within the boundaries of the general moral principles that God has given us. While that sounds complicated, it is not particularly difficult. Most moral principles are extremely simple in nature. Sometimes their application to human law may be difficult. But as Harry Truman said, the main problem is not knowing the right thing to do. The problem is doing the right thing once you know what it is.

The third category of legal interpretive situations is perhaps larger than the second. This is the category of situations in which the Constitution or statute provides no single despositive solution and in which there is no morally required single solution. There are times like this. There are times in which a court has discretion to effectively make a common law decision through the application of reason. Because reason is part of the law itself, the court’s decisions are not considered ex post facto decisions, even though they involve an exposition of the law that reflects public policy choices.

One of the mistakes that advocates of God’s law in the setting of human law have made in the past is to deny that there is sometimes more than one right answer to a constitutional or a legal question. It is undeniably the case that there is occasionally more than one right answer. And sometimes there is no perfectly desirable answer. Applications of the law are often choices between evils or choices between indifferent schemes rather than clear choices between something that vindicates the good and something that destroys it. That is what makes judging and the law challenging and complex.

By the same token, the common mistake of the secularist is to think that there is no situation in which God’s laws should have any impact on decisions about human law. To take that position is to leave a nation open to the grossest injustices both in individual cases and in the system that will result from the obnoxious habit of treating human will as if it was the divine will. It is also a mistake of both those who believe in the divine law and those who believe in positive law to neglect the area in which there is genuinely not one right answer but a series of policy choices that each has advantages or disadvantages.

The balanced view of human law needs to keep track of all three of these fields of decision making. It must understand when each situation is the situation we face and when it is not. Imparting that kind of understanding and perspective is one of the things we try to do at Trinity Law School. We do not want our students to become rigid positivists who are only capable of a formalistic understanding of human law. Neither do we want our students to be theocrats who constantly argue that there is one divinely sanctioned solution to any legal problem. Such is clearly not the case. But we also, most of all perhaps, do not want our students to be post-modern lawyers who think that human law is clearly about power and sorting out the conflicting desires of various individuals. Instead, they need to understand and be able to properly discern and blend the application of God’s law, texts, and reason, both to predict what courts would do and to advise them of what they should do.

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