I've just had an epiphany that's left me a bit flabbergasted, though in a way I'm more surprised that I was even surprised by it - by now, I should have come to expect this kind of thing.
Reading this post on The Moderate Voice, I suddenly realized that the majority of the punditocracy - including those who are looked to for analysis and opinion regarding things like the Roberts nomination - lack even the most basic understanding of law. What's worse is the liklihood of a "trickle down" effect, by which the public at large comes to accept as truisms the twisted claims that these media figures make as a result of their jurisprudential ignorance.
Michael Stickings, referring to Slate's Dahlia Lithwick, writes:
I think Lithwick acutely sums up what's really going on here: While most conservatives are content with Roberts's view that the Supreme Court's primary role is to uphold the law, liberals hold that the Supreme Court ought to advocate "law-plus"The relevant portion of Lithwick's piece is this:
Back and forth the witnesses go—Roberts is great/Roberts doesn't get it—never really acknowledging that they are not disagreeing; that it's possible to be kind and smart and to believe in the rule of law and also not to get it.What, pray tell, are they teaching the students at Stanford Law School (from which Lithwick graduated)? Law-plus? What the hell is that?
Because the "it" in question has nothing to do with the rule of law. It's about something I might call "law-plus"—the idea that the rule of law, in and of itself, has not always made this country fair. Law-plus rejects Roberts' notion that law, applied neutrally, invariably leads to just results. Law-plus acknowledges that the federal courts have leveled the playing field in this country by broadly interpreting civil rights statutes to allow individual causes of action. Law-plus means federal courts have read the civil rights amendments broadly, in order to level the playing field. Law-plus means accepting a counter-majoritarian role for the courts when the other branches of government cannot or will not protect the weak.
John Roberts isn't a fan of law-plus. In fact, the unbounded nature of judicial power under law-plus is probably what drove him into the boiler room of the Reagan administration in the first place. Time and again he scolds the senators: If you want your statute to provide money damages, write it that way; if you want your legislation to implicate interstate commerce, write it that way. For Roberts, it is not the courts' responsibility to make statutes effective. It is not even the courts' responsibility to make the world fair.
The actual distinction that Lithwick's ridiculous law/law-plus distinction tracks is, in very rough terms, that between written, statutory law - a.k.a. civil law - and unwritten, non-statutory law - a.k.a. common law (where common law is interpreted broadly, i.e. not just precedent and tradition but the enforcement of the principles of justice (or natural law, if you swing that way) by the judiciary). What Lithwick calls "law-plus" in actuality constitutes the bulk of the legal system. This entry at Wikipedia puts in nicely:
The huge collection of "law books" seen in most law offices is for the most part not a compilation of statutory law; in most U.S. states, for example, the collection of currently valid and enforceable statutory law would take up one moderately-sized bookshelf. The rest are primarily the records of past trials used as precedents.Lithwick's picture is completely upside-down. She sees the law as mostly statutory, with "law-plus" added on to the top like whipped cream on an ice cream sundae, when in fact, what we refer to when we talk about "the law" is often non-statutory law (though statutory laws are by no means insignificant).
This isn't just about terminology. Or, it is about terminology, but this is a case where terminology matters. To their credit, Stickings and Lithwick both seem to think that "law-plus" is a necessary and good thing. But by framing the debate as one of "law" versus "law-plus," right-wingers are able to lay claim to the mantle of "conservativism," in the traditional sense of maintaining the status quo. Judges should uphold and obey the law, they say, not this goofy "law-plus" that you dirty liberals want to impose upon the American people.
But in actuality, THEY are the radicals; THEY are the ones who want to do away with the status quo; THEY are the ones who want to overthrow 200+ years of legal tradition. This in and of itself doesn't make them wrong, of course, but they shouldn't pretend that what they are calling for is anything but the total overthrow of the legal system as we now know it, and as we have known it for hundreds of years.*
As it so happens, chucking the common law and converting to a civil law system would be absolutely insane. Doing so would strip away many of the rights and freedoms that most people see as fundamental. Forget substantive due process, and prepare for a country in which, as Justice Scalia is alleged to have said, "mere factual innocence is no reason not to carry out a death sentence properly reached."
The laws which people have come to rely upon in order to have any hope of getting a fair shake in life are primarily non-statutory. For instance, ever heard of something called an "implied warranty of habitability"? This is the law, found in most states, which stipulates that when a landlord leases an apartment to a renter, the landlord is required, regardless of what the lease says, to provide a habitable dwelling. What's more, "habitability" is not interpreted narrowly; it doesn't just mean "capable of being lived in." Rather, it is a specific instance of an even more general law called the "implied warranty of fitness for a particular purpose," meaning that if you rent an apartment, it goes without saying that the apartment lives up to those standards which are typically and reasonably assumed to be necessary for the intended purpose, in this case habitation.
So if you sign a one year lease and move into an apartment, and two weeks in you discover that the roof leaks, and the landlord refuses to fix it in a timely manner, you are no longer bound by the lease, regardless of what the lease itself says, because your landlord has violated the implied warranty of habitability.
Now, in most states, you won't find this law in any list of statutes. Almost always, these kind of implied warranty laws are the result of the "judicial activism" that right-wingers complain about so bitterly. (As it turns out, most laws that protect the rights of the relatively powerless are the result of "judicial activism.") If the right-wingers (or "strict constructionists") had their way, you would, in the above described situation, be shit out of luck, unless you are fortunate enough to live in a state whose legislature has passed a statutory version of this law, or were prescient enough to demand a lease that explicitly stipulated that it would become null and void if certain habitability conditions were not met (good luck finding someone to give you a lease like that).
I can practically hear the libertarians reading this saying: "Fine by me!" Well, OK. But again, what you are asking for is a radical restructuring of the legal system, and of society itself. If you want to argue that such a change should take place, fine - though I warn you, you will find yourself in a distinct minority. What I object to is the preposterous notion that this position should somehow be the default view, that this radical (re)vision of law is standard, and that those who defend the common law system want to add some kind of extra "law-plus." Like it or not, law in the United States includes the common law. The "activist judges" are not those who abide by this fact but are rather those who, like Scalia and perhaps Roberts (we'll see), would use their position on the Supreme Court to remake the legal system to their liking.
(Cross-posted at Liberal Street Fighter.)
* "Originalists" or "strict constructionists" might argue that the Constitution doesn't allow for state recognition of common law. This argument, in addition to being circular - even if the Constitution did prohibit this, it wouldn't follow that the common law system should be abandoned, without the additional premise that the written law trumps common law, which is exactly what is at issue - isn't even factually correct. Even most conservatives agree that the Framers (assuming for the moment that the Framers' intent is even relevant) intended the Constitution to embody the principles of natural law. Natural law is the highest authority; the Constitution derives its authority from it. If natural law dictates something that is left out by the Constitution, or even contradicted by it, natural law wins. The relationship is similar to that between God's will and the 10 Commandments as understood by most believers. If God tells them to do something, they don't object - it doesn't even make sense to object - that what he's telling them to do isn't to be found in the 10 Commandments. The Commandments only matter in the first place because they are an expression of God's will. Similarly, the Constitution only matters in the first place (on the natural law view) because it is an expression of the natural law. Its conformity to natural law is a necessary condition of its normative force, since (again, on the natural law view) an unjust law is no law at all.
The Constitution itself more or less explicitly recognizes this in the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."