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May 03, 2005

Comments

No, I agree with you that the blurry areas (both controversial and non) are huge -- judges have an enormous deal of leeway to appropriately make law. (For example, look at the 2d Amendment. Even if you take the individual rights position, the definition of the word "arms" is completely up in the air. A perfectly rational interpretation would be that it covered any military weapon -- nuclear missiles are "arms". Given that we aren't going to deregulate the possession of nukes, some judge is going to have to make law and say where the boundaries of the 2d Amendment do lie.)

All I meant is that there are areas where binding precedent, or statutes, or constitutions clearly and directly prescribe an answer to a controversy before a judge. A judge in that situation who starts messing around with policy considerations is cheating, and is being a bad judge. Like I said, I don't believe that this is a huge problem, but it certainly does happen sometimes.

It seems to me that the problem of judicial activism (which is IMO a much smaller problem than it's made out to be) requires a higher standard for confirmation, not a lower one. To get 75% of the senate to agree that a judge is fit to serve would require that the judge in question be obviously impartial (or at least that he or she is acceptable to a significant supermajority of Americans). To require only 50% + 1 vote to confirm a judge to a lifetime appointment creates a major incentive to try to pack the courts with activist judges, since the bar to confirmation is lower and the probability of a swing from majority to minority status at the next election makes each and every partisan vote that much more important. A 75% majority requirement would force bipartisanship(*), making the appointment of judicial activists much harder(**).

(*) Unless one party got 75% of Senate seats, which seems unlikely
(**) at least the appointment of activist judges whose predilictions are known beforehand would be harder. There are always surprises like Souter.

here is a point-by-point illustration of the nukyaler option (link via KOS):

1. Senator Frist brings a nomination to the Senate floor

2. Sen. Frist asks for a Cloture Vote to gauge initial support - this requires three-fifths of the Senate to pass

3. Cloture will fail

4. Senate Democrats will start discussing the nominee

5. At some point it will be obvious that Senate Democrats will filibuster (Sen. Frist might actually ask this)

6. A GOP Senator will raise a Point of Order that debate has continued long enough, that any further debate would be dilatory, and that a vote must be taken within a designated time frame

7. The Parliamentarian of the Senate will rule that a supermajority requirement to cut off debate is not in order would not be based on previous precedents of the Senate

8. The Presiding Officer (probably Vice President Cheney) ignores the Parliamentarian

9. The Presiding Officer sustains the point of order

10. A Democratic Senator will appeals the ruling of the chair (it only takes one)

11. A Republican senator makes a motion to table the appeal

12. Senate Democrats will attempt to debate the appeal

13. The Presiding Officer will rule that debate is not in order

14. The Senate votes on the motion to table the appeal, it takes a simple majority (51) to table appeal

15. Fifty senators vote to table the appeal, Vice President Cheney casts the tie-breaking vote, and the appeal is tabled

16. This sustains the ruling of the chair - debate on the nomination must end

17. Senate Rules are changed only by a majority vote not a supermajority which is needed

Um.. Hilzoy, much as I esteem and respect you-- Washington wasn't abiding by the Constitution when he stepped down after two terms. Presidential term limits were introduced by the 22nd Amendment.

Your reframe is not accurate. Judges should not import their own politcal judgments and impress them upon the law. The political judgments are to be made by the legislatures or those who frame the Constitution or vote on the amendments. Judges ought not project what they desire into those documents. If judges were doing their jobs, we wouldn't see reporting about the five conservative judges voting one way and the 4 liberal judges voting another way. A judge's political view shouldn't matter.

Look at it this way. It would be inappropriate for a judge who has a political belief that people arrested by the police tend to be guilty to act on that belief as a judge. His job is not to see 'justice done' by making sure the people he thinks belong in jail end up there. His job is to make sure that the political balance of prisoners rights vs. society's desire to punish malefactors vs. the right of innocent people to have their innocence protected all play out ACCORDING TO THE CHOICES ABOUT THAT BALANCE MADE BY OTHER PEOPLE--constitutional ratifiers, those who vote on amendments and legislators.

This, very much so -- where a judge needs to make new law because the current law doesn't address the controversy before them, there are no better reasons for them to rely on than considerations of justice and good public policy, which are very much political reasons. Now, a decision that is politically (socially, as a matter of policy) desireable in the eyes of the judge may be contrary to statute or to a constitution, and at that point a judge who makes such a decision is making bad law, even if they're making good policy.

This is precisely backwards. Judges to not have a general mandate to do justice and make law except when they bump up against statutes and the constitution. This mindset is exactly what is disasterously wrong with modern judicial philosophy. The rules are made by the democratic processes--in the case of the Constitution or amendments a super-majority process. But the political decision are to be made there, not by the courts.

Bad judges aren't bad because they're activist, they're bad because their decisions are wrong.

But they could easily be wrong because they are activist and see their role as creating law (as you do).

I'm not trying to be snide here, just puzzled -- you do know what I mean by the common law, right? I had an impression that you were a non-practicing lawyer.

here's an interesting article for this discussion.

This might actually be the fundamental disagreement...
pick one:

a) it is better that judges err on the side of overenforcing the Constitution
b) it is better that judges err on the side of underenforcing the Constitution
c) they should not err on one side or the other; they should simply try as hard as possible to get it right.

I'd say Brennan & Marshall & probably Randy Barnett would say (a), Scalia and Sebastian would say (b), and LB and me would say (c).

I think it's pretty rich for people who believe (b) to accuse people who believe (c) of being unfaithful to the Constitution, unless they can find something in the text that supports (b). I'd say the Supreme Law of the land clause pretty strongly supports (c) over (b), as does the 9th amendment.

Note that which of these you pick will NOT necessarily determine how many errors you make--rather, it will determine what kind of errors you make. JUdges who make (c) will still make plenty of errors, and in many cases will make more errors than judges who pick (a) or (b).

The trouble is, the very same beliefs that lead you to pick (a) or (b), are also going to influence you in how you apply (a) or (b).

That was a little more cryptic, and hence snider sounding, than I meant. Let me expand a little by asking: What is your response to the first long paragraph of my 2:16, which describes how our legal system depends on the ability of judges to make law?

SH - Judges to not have a general mandate to do justice and make law except when they bump up against statutes and the constitution.

You are describing the role of judges under a civil law system, i.e. napoleonic code/Louisiana/France, et al. Common law is different, and LB's characterization is much more accurate than yours.

Sarah: Um.. Hilzoy, much as I esteem and respect you-- Washington wasn't abiding by the Constitution when he stepped down after two terms. Presidential term limits were introduced by the 22nd Amendment.

I'm pretty sure Hilzoy isn't talking about Washington's decision not to run for a second term. If I'm reading her right she's talking about his actually handing power over to his duly elected successor once his term was up. The latter is required by the Constitution.

Gromit: right. After I read Sarah's comment, I went back and reread my post, and lo and behold it could be read that way. My bad for not being clearer. I meant: handing over power once his term was up.

If judges were doing their jobs, we wouldn't see reporting about the five conservative judges voting one way and the 4 liberal judges voting another way.

This only follows from a scenario in which there is only one possible "correct" interpretation of any issue before the Court, in which case I would ask you to offer the single possible "correct" definition of, e.g., "search and seizure." Or "cruel and unusual."

Judges to not have a general mandate to do justice and make law except when they bump up against statutes and the constitution. This mindset is exactly what is disasterously wrong with modern judicial philosophy.

Well, now I know why you are off base on this issue.

It has been the tradition of common law jurisprudence since before the existence of the US for judges to make law and do justice except when they bump into statutes (no constitution in England), and even then they sought to do justice within the context of the vague language often found in statutes. The judicial created exceptions to the statute of frauds (first enacted in 1677) are early examples of this.

Every modern legislature that writes statutes expects judges to attempt to do justice when implementing those statutes; this was also the mindset of the founding fathers when they wrote the Constitution. Modern Legislatures write into statutes general statements of intent with the express understanding that judges will use that statement to guide them in deciding those cases not clearly addressed by the statutes. They expect judges to make vurther law to fill in blanks, gaps or mistakes in the statutes.

According to your theory of jurisprudence, when a judge bumps into a completely novel case, he should do nothing since he has no power or duty to do justice and make law.

The capacity to screw up is part of being human, and judges are human beings. The answer is for them is not to abdicate to someone else; they will end up abdicating to people who were (or are) as capable as them of screwing up.

This is the giant mistake with the doctrine of papal infallibility, and with the theory of originalism--which is essentially posits ratifiers of the Constitution who are not only infallible, but also psychic.

You are supposed to abdicate to the ratifiers whenever possible, and when you can't do that, the Constitution has nothing to say & you abdicate to the legislature.

Reporters are purely objective & their work is completely unaffected by their political beliefs, or it's all a matter of opinion & there's no difference in quality & we might as well just trust the President, and rely on whichever news source most often tells us what we want to hear.

There's this idea that the only options are complete certainty and complete relativism; unlimited power and complete abidication.

At the bottom, it seems like a rejection of free will & the capacity to err, an attempt to just get rid of it. well, I'm sorry, but it can't be done, and whenever we tell ourselves we've done it we end up just screwing things up worse. Scalia thinks he's developed a way to determine the objective meaning of the Constitution--but instead he's come up with a theory that sounds good but is actually just terrible, and he can't see the logical flaws in it because of his political ideology and because of the way he was trained to think in catechism class.

"It has been the tradition of common law jurisprudence since before the existence of the US for judges to make law and do justice except when they bump into statutes (no constitution in England), and even then they sought to do justice within the context of the vague language often found in statutes. The judicial created exceptions to the statute of frauds (first enacted in 1677) are early examples of this."

A) This is not a good description of the general tradition of common law at all. The general tradition of common law was to tend toward uniformity by applying similar principles to similar historical cases. This doctrine was to encourage judges to maintain the state of the law by applying it as it had been applied in the past. Common law was in most circumstances very attentive to how historical versions of certain problems played out. Your comment about no constitution in England shows how little you understand the issue. There is no written Constitution in England. The whole point of common law was to formalize the actual practices of historical law so that the principles which people informally relied upon could be used. The common law tradition is generally conservative until changed by statute. The kind of radical breaks from traditional arrangements being talked about here are not a significant part of the common law tradition and are not true to the preeminent concern of common law--that the same rules are applied over different times and different judges.

B) There is no federal common law.

C) There is no federal common law.

D) Seriously. There is no federal common law.

Of course there is. Statutes are written with the assumption that judges will make the interstitial federal common law necessary to fill in the gaps. And of course federal judges constantly have occasion to apply state common law.

The whole point of common law was to formalize the actual practices of historical law so that the principles which people informally relied upon could be used. The common law tradition is generally conservative until changed by statute. The kind of radical breaks from traditional arrangements being talked about here are not a significant part of the common law tradition and are not true to the preeminent concern of common law--that the same rules are applied over different times and different judges.

This is just bizarre. Do you think the differences between the common law of the fifteenth century and the common law today are primarily accounted for by statute? Throughout the history of the common law, judges have made new law to bring the law into accordance with current ideas of justice and good policy. If the common law were as you describe, solely concerned with stability, then when two precedents disagreed, the older, rather than the newer, would be controlling. I don't know what legal system you're describing, but it isn't the one I practice in.

The kind of radical breaks from traditional arrangements being talked about here are not a significant part of the common law tradition

For heavens sake -- slavery was banned in England in the eighteenth century by a common law judge. You may not like the powers that the common law grants to judges, but denying that that's how our current system works in large part is just sticking your head in the sand.

While my crim law class was more than 15 yrs ago, i'm pretty sure that one defining characteristic of English common law was to define criminal statutes ever more narrowly, so as to avoid the harsh penalties associated with being found guilty. Thus, "burglary" iirc became the (a) nighttime (b) breaking and (c) entering of (d) an abode for (e) the purpose of (f) committing a felony therein.

A working definition of common law would help. My view is that common law is that body of case law interpreting and extending statutory law where an appellate court is faced with a statutory ambiguity or conflict between statutes.

We do not have a criminal common law. Statutory ambiguities result in your release.

While Erie Railroad v. Tompkins (1938) eliminated a vast amount of federal common law duplicative of state common law, federal common law continues to accrue in such areas as admiralty, antitrust, patent, bankruptcy (i.e., where the federal constitution vests authority over an area of substantive law in the Congress). I'm also pretty sure that evidentiary privileges in federal court have been left to common law development.

So, SH is just plain wrong, unless his definition of common law is something radically different from mine.

My view is that common law is that body of case law interpreting and extending statutory law where an appellate court is faced with a statutory ambiguity or conflict between statutes.

If you add an "or consititutional" after statutory, this is pretty good for federal common law. For state law there are great rolling regiouns of law where there simply aren't statutes -- most of contract and tort law, for example -- and it's all common.

Seriously, who taught you Erie? There is no federal common law as in, entirely judge made law that is not applying or interpreting Constitutional or statutory law. No federal tort & contract law, no common law crimes. There most certainly IS federal common law as in, judicial decisions on the interpretation and application of statutes & regulations & the Constitution.

I swear, it's like you went to Federalist Society Re-Education Camp instead of regular law school.

(Literally weeping with laughter.)

My understanding is that US law is more codified than the law in the UK - there's a PDF file here discussing this issue, with regard to Scotland, where the criminal law used to be almost all of it common law.

But so far as my reading on the subject is concerned, while the US may have a considerable body of legislative law, its legal system is still based on the original principle of English common law - in which, yes, judges make laws.

FSREC is not accredited; I checked. katherine, you just about made me spew diet coke all over my keyboard.

LB, great addition to my definition.

common law trivial for law geeks: do you know that California has codified some of the common law canons of interpretation? See Civil Code, section 3509-3548. my favorite: Superfluity does not vitiate. (3537) but see: the law disregards trifles. (3533)

[apparently the law prefers parfaits.]

There once was a young man named Rex,
With a diminutive organ of sex.
When charged with exposure,
He replied with composure,
"De minimus non curat lex."

So it is your contention that the Supreme Court could have (using its alleged common law power) banned slavery without an amendment to the Constitution? That is fascinating. Why do we bother with amendments ever then?

Common law allows for laws to be applied in logical ways to circumstances which were beyond the forseeability of the statute writers. Applying search rules to phone taps is a classic example. The statute-writers of the 18th century didn't forsee that you could collect evidence by spying on someone through the phone wires, but you could logically analogize from search warrant requirements from mail and households. That is common law reasoning in action. You could not say that privacy rights make it impossible to search your house even with a warrant, because searching your house with a warrant was a practice the statute writers knew about and wrote about.

As for doing justice unless you bump into a statute, that isn't how it is supposed to work. If a judge thought it would be in the interest of justice to ban the color green on waiters' uniforms, he is not empowered to do so by the fact that there is no statute saying what color waiters' uniforms may or may not be. There is not some general principle of law saying that judges may do all things they think are in the interest of justice unless there is a statute or constitution which contradicts them. That is a complete inversion of common law practice. Common law looks at the way things were done in the past, and attempts to make things which were not explicitly done in the past look as much like how things were done in the past as is possible. That is what it does. That is what the whole idea of common law PRECEDENT is all about. What you are talking about is not common law.

For instance: "Thus, "burglary" iirc became the (a) nighttime (b) breaking and (c) entering of (d) an abode for (e) the purpose of (f) committing a felony therein."

This occurred mainly because the PRACTICE of the law was not uniform. As actually applied judges said things like "Do we execute those who walk in an open door uninvited during the day for the purpose of saying hello? No we do not, therefore that isn't burglary. Common law tradition was about making uncodified practices uniform so that they would be applied similarly county to county.

The idea that common law enables judges to "do justice" unless they are explicitly forbidden to by statute is completely incorrect. In very limited instances they may be given that ability by statute (juvenile law being the most obvious case in some states) but it is not a general provision.

Common law is conceptually about looking at how things were done in the past and doing them as similarly as you can given the different circumstances. That is what case law analogies are all about.

In any case, the common law concept is strongly changed when you have a written Constitution.

"I swear, it's like you went to Federalist Society Re-Education Camp instead of regular law school."

Hmm, it sounds to me like your idea of legal history is very much based in self-justification and revisionist thinking rather than the actual practice of common law if you think common law reasoning is a revolutionary rather than stability oriented doctrine. You can disparage my legal training all you like, but you have no deep understanding of the law as it was intended to work in this country if you can make such a fundamental mistake about how common law works. Perhaps your insular political training exceeds your willingness to bother with history.

Contracts with the United States are governed by federal common law.

So it is your contention that the Supreme Court could have (using its alleged common law power) banned slavery without an amendment to the Constitution?

Good heavens, no. You might have noticed that I said no such thing. I was addressing your contention that the common law had not historically addressed "radical breaks from traditional arrangements."

Look, we're making fun of you because you were dogmatic and wrong: "There is no federal common law" is simply not, on any level, a true statement. Certainly I agree that there are differences between the scope of the powers of a 21st century American federal judge and an 18th century British judge -- the modern American judge is far more hemmed in by statute than their earlier counterpart. Still, one of their duties is still to make law -- when they are presented with a controversy between two parties, and the binding sources of law do not prescribe an answer, the judge's duty is to make a decision on some basis (public policy, analogy with similar situations, their own sense of justice and equity) and that decision becomes the law.

"The idea that common law enables judges to 'do justice' unless they are explicitly forbidden to by statute is completely incorrect"

... and equity vanishes in a haze of revisionism.

I also find it mildly amusing that the same people who are so dismissive of 'natural law' are allegedly such big fans of the common law tradition, which is deeply steeped in the idea that laws of nature combine with laws of divine revelation to give us the law (see Blackstone's "Commentaries on the Laws of England", you may have heard of him in relation to common law.

"Still, one of their duties is still to make law -- when they are presented with a controversy between two parties, and the binding sources of law do not prescribe an answer, the judge's duty is to make a decision on some basis (public policy, analogy with similar situations, their own sense of justice and equity) and that decision becomes the law."

You haven't heard of a motion to dismiss for failure to state a cause of action?

Don't be silly, SH. No one is denying that the common law is stable, just that it isn't fixed, and of course I've heard of (and made, and opposed, and argued) motions to dismiss.

I also find it mildly amusing that the same people who are so dismissive of 'natural law' are allegedly such big fans of the common law tradition, which is deeply steeped in the idea that laws of nature combine with laws of divine revelation to give us the law

And what is this supposed to be? I'm not advocating the common law as some sort of wonderful innovation, just stating the non-controversial fact that it is a substantial element in the legal system we do, now, in this country, use. If your position is that a civil law system would be preferable, that could be defended (although the switchover would be hell), but it's not the system we now have.

What is the purpose of a motion to dismiss for failure to state a claim?

Actually I should phrase more carefully to help the discussion. Considering that you have written that: "Still, one of their duties is still to make law -- when they are presented with a controversy between two parties, and the binding sources of law do not prescribe an answer, the judge's duty is to make a decision on some basis (public policy, analogy with similar situations, their own sense of justice and equity) and that decision becomes the law." What is the purpose of a motion to dismiss for failure to state a cause in this framework which you claim defines the duties of a judge?

1. I'm not clear on why it matters for this discussion whether or not there is federal common law (although there clearly is some). There's state common law, and federal judges are frequently charged with applying it. And when they don't know what the answer is, making a guess. This may not be so common in California, where you have millions of people, intermediate appellate courts, and disputes aplenty about everything. In a smaller jurisdiction, though, like DC, it is very frequently the case that the federal district court is looking at a question that has not been addressed by the local court. (We have no intermediate state court of appeals, trial court decisions are barely reported, and a small population then the SF city limits). Quite often, if there is any authority at all, it is from another district judge, and so you end up with what is essentially federal judges making common law.

Of course the DC Court of Appeals is free to go a different way, and I'm sure that a dedicated search would find instances of its doing so. In the main, however, Erie means a lot less here than in a place like California.

2. In the 18th century, the Massachusetts supreme court struck down slavery. The local federal court, anachronistically (i) existing and (ii) applying Erie, could just as well have stricken it down the year before. By predicting that the state court would have done so.

3. Common law courts have the power -- and have always had the power -- to create causes of action. They don't concern themselves with trivialities like uniforms, but this power has existed from the beginning. Obviously, then, a federal judge has this power as well, and can exercise it whenever he/she thinks that a state court would do so.

4. War Story: I worked on a case in the mid-90s, and the judge sent out a draft opinion. It was in federal court in NY, amending the articles of a NY trust (a state law cause of action). The judge gave a fairly complete history of equity from the Plantegenet beginnings through the Tudors, the conquest of Nieuw Amsterdam, the English colonial administration in NY, the Revolution, the 19th century constitutions of NY (adopting common law), all culminating with the line: in sum, this Court is possessed of all the powers of the ancient chancellors. Unfortunately, the judge thought better of it, and deleted the line from the reported opinion.

Sebastian, this is tiresome and obnoxious. A motion to dismiss asserts that the plaintiff has no claim recognized by law. This is not a question that can always be resolved by a simple reading of the statutes in question, given that statutes are often ambiguous and incomplete, nor can it always be resolved by finding precedent that is directly on point. The judge must often decide whether the plaintiff's claim can survive by consulting their own sense of which analogous precedent should control, guided by their sense of equity and of public policy. The judge's decision then becomes law.

And Socratic questioning of this type is a nasty and contemptutous rhetorical technique. If you have a point, make it. If you continue in this vein, I may leave you to talk to yourself.

That was testier than it would have been had I seen your second post. Substantively, though, I think my post above answers it.

"What is the purpose of a motion to dismiss a case for failure to state a claim?"

Many of us who represent defendants in state courts ask ourselves this question often. ;- )

The USVI has a statute to the effect that its law, except when specified by statute, is to be found in the Restatements. A Platonic paradise, where law professors make the law.

"I'm not advocating the common law as some sort of wonderful innovation, just stating the non-controversial fact that it is a substantial element in the legal system we do, now, in this country, use."

But the part we use is the system of analogizing case law of old situations to unforseen new ones. That is the conservative part of common law, not the revolutionary part. And despite Katherine's rather odd denial, statutory interpretation is not the same as common law. When one says that we have a common law system (if one has a historical understanding of the phrase "American common law system") one means a system of laws for which strong deference is given to previous interpretations of similar facts and similar situations such that those similarly situated will get the same outcome no matter which judge they are before. That isn't about revolutionary change. When one says talks about common law in Constitutional jurisprudence or statutory interpretation, you mean that the system is supposed to give strong deference to previous interpretations of similar facts. So yes, the Court is supposed to be common law in that sense. Which is why discovering that the 8th amendment outlaws all capital punishment is ridiculous. Which is why discovering that 17 year-old murderers can't be executed despite an on-point Supreme Court case younger than me (which agrees with 200 years of legal understanding on the death penalty) is just silly. But that facet of 'common law' doesn't help your case at all.

Man, research there would be heaven. And the New York district courts are the source of an awful lot of NY common law, too -- for some reason NY state opinions are almost always incomprehensibly terse, and it's very hard to figure out what they stand for. When the federal courts deal with NY state law, you can at least tell what they're talking about, so they get cited a lot, including by the state courts.

This discussion is confusing two issues.

1. Interpretation - what LB and I were initially talking about, and which would apply even in the case of a civil system. If you believe the rule can be written that covers all situations and applications, or even that is devoid of all possible ambiguities (except in trivial cases), you are simply wrong, SH.

2. Justice - what Katherine was talking about. Courts try to (1)show fidelity to the body of law (whatever that means), and (2) do justice. Pretending that there isn't a long history of choosing the available interpretation that "does justice" is inaccurate.

Differing definitions of common law seem to be mediating between these two discussions.

oh come on. A motion to dismiss for failure to state a claim lies in the narrow circumstances when a plaintiff has made a claim which is not cognizable. If a claim does not sound in tort, contract, property or statute, then a judge shouldn't make stuff up and should just dismiss the case.

But especially in the area of property law, the statutes are openly and notoriously vague.

Without being hostile here, i am adverse to the position you seem to possess. (and i'm pretty sure i can't drag this pun out for five to seven years.)

Here's another real world example: suppose I represent the defendant in a legal malpractice case, where the alleged negligence is failure to obtain a judgment for punitive damages. I move to dismiss, saying that "lost" punitives are not recoverable. Case is in federal court, but the same thing would have happened if we'd been in state court: there's no state law, so the judge has to weigh the policy rationale for punitive damages -- they're not intended to be a windfall, but are designed to punish and deter, which does not occur if they're paid by the lawyer -- against the common law principle that damages in a negligence action are what was lost on account of the negligence.

The leading case in this field -- well, leading from my perspective -- was written in 2003 by Justice Brown in California. She picked policy over common law, and said not recoverable.

I can't decide whether Sebastian thinks she's wrong (or out-of-control) in the result, or wrong for the method, or whether I'm in the wrong for raising the argument in a jurisdiction other than California.

Lizardbreath, let me see if I am understanding you: "The judge must often decide whether the plaintiff's claim can survive by consulting their own sense of which analogous precedent should control, guided by their sense of equity and of public policy. The judge's decision then becomes law."

It is your contention that 'failure to state a claim', means "not found in the statutes or precedent" AND not something that the judge personally feels like correcting based on his personal sense of justice or public policy? Am I correct?

It seems to me that the judges ruling if he dismisses a claim is a 'judgment' not a 'law'. The distinction is very important. A judgement is the application of laws to to a specific set of facts. In any major facet of federal law, a judgment from a previous case may be used to show that a similar case should be decided similarly by common law precedential principals. Perhaps that is what you mean when you say 'becomes law'? But the distinction is very important, because federal law is grounded in statute or Constitution. If a previous judgment for some reason disagrees with the statute or Constitution it should be ignored as wrong. "Law" in the context of federal law is grounded in text. Judges issue judgements with respect to a text NOT because they feel that their own personal sense of justice or even their own personal feel for society's justice would be served.

"A motion to dismiss for failure to state a claim lies in the narrow circumstances when a plaintiff has made a claim which is not cognizable. If a claim does not sound in tort, contract, property or statute, then a judge shouldn't make stuff up and should just dismiss the case."

That is most precisely not what Lizardbreath wrote. Not cognizable in your sentence does not mean "unable to be comprehended by the human mind" it means "not in law".

Sebastian, I do apologize for being personally rude, and it's perfectly understandable that you've gotten heated.

Nonetheless, you're not really addressing my original point. Our federal courts rely, in many circumstances, on the principles of common law. In accordance with those principles, one of the duties of judges is to make law (as described at length above). The counterfactual world where judges were humble and didn't make law, restricting themselves to applying the literal words of statutes and constitutions would simply not function without a body of law very different than the one we now have -- many cases would not be decidable in either direction.

You can say that judges refuse to be bound by clear statutory and constitutional provisions that they should be bound by, and depending on the instance, I may agree with you. But it is not reasonable to say that making law should be outside their purview.

This:
When one says that we have a common law system (if one has a historical understanding of the phrase "American common law system") one means a system of laws for which strong deference is given to previous interpretations of similar facts and similar situations such that those similarly situated will get the same outcome no matter which judge they are before. That isn't about revolutionary change. When one says talks about common law in Constitutional jurisprudence or statutory interpretation, you mean that the system is supposed to give strong deference to previous interpretations of similar facts. So yes, the Court is supposed to be common law in that sense. Which is why discovering that the 8th amendment outlaws all capital punishment is ridiculous. Which is why discovering that 17 year-old murderers can't be executed despite an on-point Supreme Court case younger than me (which agrees with 200 years of legal understanding on the death penalty) is just silly.

doesn't stand up. The founders knew what common law judges did, and provided them with an elliptical and ambiguous body of law (quick, list all punishments that James Madison would have considered "cruel and unusual". Now Hamilton...) If the Founders had meant to strip American judges of the power that their predecessors had always had, to interpret pre-existing law in the light of their own current beliefs as to equity and justice, don't you think they would have done so explicitly?

A judgement is the application of laws to to a specific set of facts. In any major facet of federal law, a judgment from a previous case may be used to show that a similar case should be decided similarly by common law precedential principals.

And that judgment is the law for lower courts. Caselaw is a real source of federal law -- your statement that "'Law' in the context of federal law is grounded in text," is true but incomplete. When I walk into a partner's office tomorrow and tell him what the 2d Cir. law is on consumer fraud as a RICO predicate act, I'm not going to get away with just reading him the statute. The law in this regard is the body of cases that have been decided by the relevant courts.

"You can say that judges refuse to be bound by clear statutory and constitutional provisions that they should be bound by, and depending on the instance, I may agree with you. But it is not reasonable to say that making law should be outside their purview."

I think we may have strayed too far from the topics at hand and are now trying to talk about everything at once. Let us take the area of law most at stake for judicial nominations.

Constitutional law: constitutional law involves overturning or upholding statutes based on their conformance with the Constitution of the United States. Would you agree?

In that field, judges are NOT empowered to make law in conformance with their ideas of justice unless their ideas of justice violate the Constitution. In that field, judges are empowered to overturn a legislatively-enacted statute ONLY if it actually violates the Constitution. Whatever you may believe about the power of common law judges, the power to do justice UNLESS the personal judge's view bumps up against the Constitution (which I deny exists) does not operate in the field of Constitutional law.

Do you agree? If not, why?

Sure. Judges are bound by statute unless that statute conflicts with the Constitution.

They do (and this is where we part company) have fairly broad latitude in interpreting the Constitution. The Bill of Rights, where most of the energy gets expended, is simply not written in a way that allows for literal application. (Question: Do you believe the 2d Amendment mandates the deregulation of artillery ownership? Do you believe that if you sat down each person who drafted or ratified the Constitution, they would agree on what "cruel and unusual" meant?) The Founders, as I said above, drafted this broad and ambiguous document knowing that it would be applied by judges one of whose historical functions was to turn broad principles into concrete decisions of law. I'm not worried by the fact that they do so.

Do you agree that the question of determining the definition of 'arms' is rather different than using search and seizure without a warrant to determine that a state cannot limit 3rd-party involvement in inducing an abortion?

Forgetting the ninth amendment, aren't you?

Look, I'm no great fan of Roe as good law -- while there might have been a Constitutional way to get that result, Roe wasn't it. But that makes Roe a bad decision, not a function of judges slipping their bounds and daring to make law rather than abiding by the clear words of the Constitution. Judges have to make law all the time, the question is whether they're doing it well or badly. And Roe-class decisions are something you might be able to call a problem of Supreme Court jurisprudence, but not really of judicial activism generally.

Sebastian:

You have an unhistorical view of how the common law worked in England. Although it pretended to be immutable and unchanging, it was changed frequently when circumstances changed. In its early legal history, the English also invented the perverse notion of "legal fictions" in order to make numerous changes while pretending not to. Eventually, they stopped bothering with that, as the alleged immutability of the common law was a silly pretense. They just allowed changes to be made. That tradition of change was then inherited in this country.

Judges are schooled to be conservative and respect common law precedent, but the Supreme Courts of the states have always had the power to change it. You are confusing respect for tradition (and the benefits that flow from it) with an alleged lack of power to make changes. Since the history of law has been to allow judges to make such changes in common law, I suggest you put some energy into understanding how that is done instead of pretending that it has not happened or that it is somehow illegitimate.

Others have already made the point about federal common law (a clear example is 10b-5 litigation -- there is nothing in the regulation that created a private right of action; it was implied by federal common law). It clearly exists as to those areas of law that are federal, and federal judges also have the power to construe state common law if a state law question is properly before them. There is a whole body of federal common law describing how they are supposed to do that.

As for the Constitution, I have read enough posts by you now to see that you never address the basic fact that the Constitution by its nature requires ample interpretation to flesh out it broad and vague phrases. LizardBreath says it succintly above. You are also hostile to the basic meaning of the 9th amendment, which requires you to ignore the clear intent of the framers as to the rights retained by the people that are not enumerated in the constitution and the obligation of the courts to protect those rights. You prefer to do exactly what the framers said was not to be done -- imply the negation of rights if not expressly spelled out. Your reasoning is wrong and refuted by the history.

You may not like that the framers created such vagueness which then grants to federal judges very broad powers regarding constitutional questions, but it is nonsensical to pretend that the exercise of that power is illegitimate.

As for your "motion to dismiss" question, there are countless instances in which the courts have created a new cause of action. Product liability laws; Bivens and 10b-5 litigation (federal examples); etc. These are all claims that would be dismissed, except that the courts decided to create a new right and allow the claim to proceed. So what is your point?

"In that field, judges are empowered to overturn a legislatively-enacted statute ONLY if it actually violates the Constitution."

I can't imagine that you'd actually get any argument from anyone on this proposition. I certainly agree with it. The question though is whether any particular statute actually violates the Constitution. I think, for example, that the recent partial birth abortion statute does. You think it doesn't. You think my reasons illegimate.

I think the Florida Supreme Court's 2000 order that all votes be counted did not actually violate the Constitution. Maybe you think it did. I've never heard what I consider a coherent explanation.

There's no reason to expect that Sup. Ct. justices would come to agreement about the 14th amd any easier than would a couple of guys sitting on adjoining stools in a bar. That doesn't mean the system is broken. it presupposes disagreement.

As for the Constitution, I have read enough posts by you now to see that you never address the basic fact that the Constitution by its nature requires ample interpretation to flesh out it broad and vague phrases. LizardBreath says it succintly above. You are also hostile to the basic meaning of the 9th amendment, which requires you to ignore the clear intent of the framers as to the rights retained by the people that are not enumerated in the constitution and the obligation of the courts to protect those rights. You prefer to do exactly what the framers said was not to be done -- imply the negation of rights if not expressly spelled out. Your reasoning is wrong and refuted by the history.

No you have apparently not read me enough considering I have dealt with the very issue of ambiguous clauses on repeated instances. The existance of the need to define certain phrases is not the license to create new rights. The right to be free of searches and seizures without a warrant cannot be turned into a general right to privacy which mandates that all states allow third parties to induce an abortion. That is simply not interpretation.

The 9th was A) a protection from the federal government and B) does not offer a very good reason to protect 'rights' not recognized by a majority of people. It surely doesn't protect anything that any individual considers a right wouldn't you agree? Therefore it is mere pretense to say that it protects rights which are NEITHER part of the established tradition NOR thought to be rights by at the very minimum a majority of citizens. If the 9th means something it cannot protect everything that anyone wants to call a right. If it isn't part of the traditional understanding of rights and its also isn't part of the majority understanding of rights, how can it be thought to be a right of the people? Especially if you don't believe in natural rights theories (which regularly get savaged here at ObsidianWings). Where the hell are you grounding these alleged rights? It sounds like the judge just makes them up. That is the very definition of judicial activism. It also isn't the foundation of almost any of the controversial decisions in question and is thus a bit beside the point. Was Roe grounded in the 9th? Was Roper grounded in the 9th? Can I assert a 'right' not to pay social security tax? You are grasping at straws, especially since the 9th is grounded in a natural rights understanding that almost everyone on this board claims to detest.


Sebastian, the reason new rights are quote unquote discovered is:

--sometimes the founders or the judges first interpreting the Constitution made errors of fact that we have recognized as errors.

--sometimes the facts have simply changed, or our knowledge of them has, and that changes the way we understand and apply the exact same legal principles.

For instance, homosexuality was once thought to be a choice. Now we know otherwise. It was once thought that women were delicate creatures whose natural role would be upset if we were allowed to vote or practice law, and that the state wasn't discriminating but rather upholding God's plan. Now we see that as blatant sexism. We also know that there has been a long history of wrongful discrimination against those groups.

Once upon a time, the right to trial by jury was perhaps the best protection against opression by the state, and you didn't really need a lawyer to avoid wrongful conviction so there was no need for the state to pay for one. Now an attorney is indispensable, probably much more so than the jury, and an overworked, underprepared or incompetent attorney greatly increases the risk of wrongful conviction and severity of sentence.

Once there were 13 states. Now there are fifty. Once arms included muskets and cannons. Now arms includes biological and nuclear weapons.

Once one of most dangerous abuses of government power was thought to be the peacetime quartering of soldiers. Today it would probably not occur to us to write a whole amendment about that. Today one of the most dangerous abuses of government power is thought to be government invasion of the body and the family. It did not occur to James Madison and Thomas Jefferson that states would try to use sterilization as a means of genocide, would break up families and force children to inform on their parents, would force women to have abortions as a means of population control, would perform sick, awful "medical experiments" on human beings thought to be expendable.

I really thought we went through this, at great length, severeal months ago, and I had FINALLY succeeded in making you understand how a liberal sees this, and why she thinks Scalia's whole theory of constitutional interpretation, in a word, sucks--is based logical & linguistic error, ignorance of history, a failure to take real legitimacy problems with our Constitution even a tiny bit seriously, and an immature inability to deal with human fallibility, as well as Antonin Scalia's personal religious belief and his personal distaste for the idea that people have inalienable rights, especially certain KINDS sorts of people.

And now--it's like we never had those conversations, and here you are again quoting from the Federalist Society's equivalent of the Little Red Book.

It's unbelievably frustrating.

"The right to be free of searches and seizures without a warrant"

That's not what the 4th amendment says, any more than the equal protection clause of the 14th Amendment says "nor shall the government treat people differently based on their race".

Here is what it says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Check out those two independent clauses. Why have you decided that the first one doesn't mean anything? I don't think it means Roe is correct, but I do think it leaves open the possibility that invasions of the security of the person and the home are inherently unreasonable. I think China's abortion policy is unconstitutional.

As for the 9th amendment: it is a rule of construction that says, don't construe a rights-granting clause to limit rights. Don't construe the 5th amendment's right against deprivation of life without due process to limit the right not to suffer cruel and unusual punishment. Don't use the second sentence of the fourth amendment to read the first sentence out of existence. Stuff like that.

While I'm shamelessly linking to myself, here's more on "crowfu", "clafouti", and cetera for word mavens.

I really thought we went through this, at great length, severeal months ago, and I had FINALLY succeeded in making you understand how a liberal sees this, and why she thinks Scalia's whole theory of constitutional interpretation, in a word, sucks--is based logical & linguistic error, ignorance of history, a failure to take real legitimacy problems with our Constitution even a tiny bit seriously, and an immature inability to deal with human fallibility, as well as Antonin Scalia's personal religious belief and his personal distaste for the idea that people have inalienable rights, especially certain KINDS sorts of people.

I know how liberals see it and in fact was well aware of it many years before you came along, I also know that many--and especially you--don't see how their methods of freeing the Constitution from the actuality of its words so that your judges can get what they want against both history and the will of the people tends to undermine the democratic underpinnings of the republic. You don't seem to realize that outlawing slavery and giving women the vote took Constitutional amendments for a reason. That reason is that not all good things are protected by the Constitution--knowledge which you have exhibited previously though which seem to forget rather often I'm afraid.

You act precisely like the person who says "I'm not really comfortable with torture, but on the other hand terrorists kinda deserve it." Such a person fails to notice that A) it isn't always terrorists and B) allowing torture corrupts the system in ways that hurt people who don't deserve it.

You get your preferred changes by throwing in with the liberal free-form interpretation schemes, but you fail to see that doing so undermines the proper function of the judicial system as impartial an arbiter of laws as is possible and that it sets up a situation where the laws you do like exist at the whim of judges whom (you are finally discovering) might not have political ideas you agree with. Your personal view on jurisprudence (which so far as I can tell bears precisely no relation to any dominant view of liberal jurisprudence) is nice, but as you so kindly remind me when it comes to votes on torture--the company you keep doesn't agree with you.

I don't think it means Roe is correct, but I do think it leaves open the possibility that invasions of the security of the person and the home are inherently unreasonable.

That is a fascinating construction but unfortunately it does not bear any resemblance to the actual text unless you ignore basics of writing at the time. Independent clauses? Not even close:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If the clauses are independent, the bolded section makes no sense. Unfortunately for your interpretation style, that is because the 'no warrants shall issue, but on probable cause supported by oath or affirmation' is the outline of what reasonable searches are. The amendment is
A) main proposition
B) definition of the exception
C) further clarification on the exception

The problem is that you are using the 'and' in the "and no warrants shall issue" as if it was modern English. The and does not separate it into two independent clauses, it joins the two clauses to show they are interdependent. This isn't unheard of in modern English, though it is rarer. It is usually a function of audience. "No one should open this secured door, and those with a key need to be careful to lock it behind them." You also seem to posit that there was no history of warrants so that it could be cryptic to a reader at the time. Anyone who could read Shakespeare could get that. You have to train yourself not see it.

You also have to ignore that barring someone from assisting in inducing a miscarriage is neither a search nor a seizure, but this exercise just shows how inattentive you are to the words themselves without going even that far. And mandating an abortion would probably be a seizure if you want to drag China into it.

The problem with your system of jusrisprudence is that it doesn't really have limits. I'm willing to talk about how technological changes have created searches that the founders would never have dreamed of, or that 'papers' should extend to emails. I'm willing to entertain an idea of rights that suggests that when some magical threshold of the majority believes in a right it becomes one (though I suspect the idea is potentially very dangerous). I'm not willing to accept that a 'right' which is not grounded in tradition AND which is not recognized by a majority AND which has not gone through the legislative process AND which is posited by someone who rejects 'natural law' can be grounded in anything substantial enough to overrule the will of the majority. Your basis at that point is just "I'm right, you're wrong, and I have the power so live with it." That is the mindset the brings about tyranny. That is the mindset that the Constitution is supposed to guard against for the rights enshrined in it. You undermine the very rights you want to protect by undercutting the legal structure that protects any rights. Your justifications make the Constitution fluid enough so that you don't have to go through the democratic process to get the changes you want without realizing that doing so undermines the ability of the Constitution to protect the new rights and the old. I would rather have 30 well understood and established rights protected well with a new one or two added every 20 years rather than 150 rights protected very poorly so that we could add new ones quickly.

How can you have a long discussion on federal common law and not mention the Sherman Act, which as far as I know, has been read since it's enactment as a grant to judges to make law on the topic of anti-competitive practices. Also, there's Boyle v. United Technologies Corp. where Scalia created the federal common law government contractor exemption. Now that's a terrible opinion.

Seriously, Sebastian, do you think M'Culloch v. Maryland was wrongly decided?

I'm not a scholar of the field, having no need to be, but I don't think anyone has ever said that the privacy right to be free of state interference in seeking medical help to terminate a pregnancy derives from the text of the Fourth Amendment, but that it comes the principle upon which the Fourth Amendment (among others) was based. You may find this unhinged, but it doesn't seem at all difficult. Why is there a Fourth Amendment? Becase individuals should be free from unreasonable intrusions of the government. How can one know that specifying the particular limits of a particular intrusion does not conclusively define the limits on government power? Because the Ninth Amendment says not to interpret the document this way.

I also don't think that this -- either text or underlying principle of the 4th amd -- is the current state of the law. This privacy right is now understood to be a species of liberty, and not so strictly dependent on the 4th amendment. I could be wrong, and welcome objective correction on this, but doesn't Casey moot much of your methodological complaint about Roe? Some?

Katherine:

As for the 9th amendment: it is a rule of construction that says, don't construe a rights-granting clause to limit rights.

It's more than that, although your remark did not necessarily imply a limitation. Madison said the following about the 9th in support of adopting the Bill of Rights:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [what became the 9th amendment].

Madison intended that the 9th secure other fundamental rights not specifically enumerated -- it is not purely an interpretation clause.

Justice Goldberg in Griswold:
"The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments."

Sebastian:

The problem with your system of jusrisprudence is that it doesn't really have limits.

The system of jurisprudence you disparage happens to be the original intent of the founding fathers. It is perhaps unfortunate that the drafers of the Constitution chose to leave this vague, but that is what they did. With regard to individual liberty and protection of individuals from government, they intentionally created a system of vague rights that require the court to take an active role in shaping those rights. You may prefer a system that defers such considerations purely to the Legislature or other political process, but your argument happens to be contrary to the original intent of the framers of the Constitution.

As for "natural law" and "natural rights", in one context that was a cornerstone of inspiration for the Constitution --- that is, if you are referring to the concept as conceived during the Enlightenment. There is no question but that the founding fathers were heavily influenced by this concept, and incorporated the philosophy into the Constitution.

But if you are referring to the modern variation which I understand to be religious based -- then you are speaking of a different creature. It is the modern variation that liberals don't like, but the concept of "natural rights" (the Enlightenment concept) is inherent in the Constitution. What you see as a contradiction is in fact a muddling of the two concepts.

A little late, but thanks so much to hilzoy for the original post. As I move through my 30's I am, indeed, as predicted, becoming more "conservative," but only when "conservative" means the sort of thing that hilzoy means by it. Amen and amen and amen to recognizing that supporting a legal system is itself a morally important thing to do, not a cop-out from any given moral argument.

The key difference between civil disobedience in the civil rights movement, say, versus what Pat Robertson et. al. seem to be calling for, is that the civil rights people put themselves on the line. They were willing to be punished for their disobedience. They respected the rule of law even as they disobeyed the law in order to change it.

By contrast, of course, Pat Robertson (et. al.) want to put OTHER people's lives on the line; they want OTHERS to be punished; and they have no respect for the rule of law in and of itself.

Thanks also to Sebastian and his interlocutors on the interpretation question. Terrific stuff to read. I haven't thought about these questions in a coon's age.

Um, okay, I frankly don't believe you know anything about 1789 grammar. I frankly think you're making it up. The bolded phrase modifies "warrants". It doesn't make sense if you don't think it refers to search or arrest warrants, which would be equally clear if the initial independent clause was its own sentence.

I do not plan to check this thread further, and hopefully have finally learned that discussions with people who throw spitballs and either utterly refuse to address your arguments or intellectually engage, or just aren't capable of it because they're really ignorant on the subject, are not worth it.

Since you began the thread with spitballs, it is quite possible that you are right.

If the clauses are independent, the bolded section makes no sense. Unfortunately for your interpretation style, that is because the 'no warrants shall issue, but on probable cause supported by oath or affirmation' is the outline of what reasonable searches are.

(A) Katherine, above, is right -- there is no compelling reason in 18th C English to interpret the sentence as you do, rather than as she did. The first 'and' in the sentence can certainly be read as connecting two independent clauses. (B) What the heck are you claiming is her "interpretation style"? You've gone from saying that the problem with her style is that it's totally lawless and unbound by the text of the Constitution, to saying that the problem is that the grammatical analysis in her close reading of the text is flawed.

"You've gone from saying that the problem with her style is that it's totally lawless and unbound by the text of the Constitution, to saying that the problem is that the grammatical analysis in her close reading of the text is flawed."

It could certainly be both. It is quite unbounded as exhibited by tortured readings of even obvious phrases which allow for politically interested interpretations. She is of course right about one thing. It is difficult to argue with people who don't understand what they are talking about.

Her interpretation of the 4th is: "but I do think it leaves open the possibility that invasions of the security of the person and the home are inherently unreasonable."

That is not supported by the text which clearly outlines the nature of reasonable searches. The whole reason warrants are mentioned is to explain what a reasonable search is. The warrants clause modifys the restriction on searches and seizures. That is the obvious reading and (although I know the argument holds little weight for some) the historical reading for more than 150 years. The idea that the 4th amendment says that all searches and seizures are unreasonable despite the fact that it specifically outlines how to engage in proper searches and seizures is ridiculous but unfortunately unsurprising.

Also unfortunate is her ability to begin her discussion with me with enormous insults and vicious attacks and then whine about my disinterest in engaging her intellectually.

Frankly I engage katherine more than a person who begins her discussion with me with: "I swear, it's like you went to Federalist Society Re-Education Camp instead of regular law school." and uses "little Red Book" as a description of my discussion deserves.

SH-

You've repeatedly made strong statements of fact that are simply false -- yours of yesterday at 6:59, claiming that there is no federal common law, and yours of 1:58 this morning claiming that differences in language usage between the 18th C and today ("unfortunately it does not bear any resemblance to the actual text unless you ignore basics of writing at the time") mandate your interpretation rather than hers of the fourth amendment. Both of those statements are inarguably false. If made in good faith, you're ignorant of the matters you're discussing heatedly. I believe the rules of this blog forbid me from specifying the alternative.

In any case, you're attempting to bully people with claimed superior knowledge, and you're using false statements to do so. That explains, and in my opinion excuses, a great deal of Katherine's hostility.

"differences in language usage between the 18th C and today ("unfortunately it does not bear any resemblance to the actual text unless you ignore basics of writing at the time") mandate your interpretation rather than hers of the fourth amendment. Both of those statements are inarguably false."

Excuse me? Katherine's interpretation is not even close. Not even close isn't inarguably false. Katherine's interpretation is that the fourth amendment is open to the idea that all searches are unreasonable. It clearly is not. Follow the comma and you find an exception only a few words away. And that absolutely typifies the issue.

As for common law, you certainly get to be right if you define all statutory interpretation as 'common law'. If you were to read Blackstone or Holmes on common law you wouldn't be reading about statutory interpretation. Common law case law and statutory interpretation case law is not the same at all. Common law case law is grounded in historical practice. You derive the implied law from observing the practice. Statutory case law has actual law, and the practices in question are how we typically look at it. Katherine claims that all Constitutional law is 'common law' when in fact it is statutory interpretation. Labeling it as common law is a cute way of introducing the idea that judges get to do what they want (though even that dramatically ignores the very conservative nature of how common law is supposed to operate). But as we established in the question about justice-making and bumping up against the Constitution, judges can only overturn laws which conflict with the Constitution--it isn't that they can overturn all laws except those that the Constitution says they can't.

But the 4th amendment thing is ridiculous. On its face it is clearly not saying that all searches are unreasonable. Saying that it is 'open' to that interpretation is not analysis--it is seeing what you want to see despite the evidence.

No. All the bullshit about independent clauses was inarguably false, and was inexcusable bullying -- you were claiming arcane knowledge of 18th C. grammar that you don't have and that does not support the point you are making.

Further, the types of federal common law that a number of commenters pointed out to you (a) exist and (b) are known as "federal common law". If you want to create a distinction between the duty to create federal common law where appropriate that federal judges inarguably do have, and the type of common law that federal judges do not have the duty to create, then you can go ahead and do that. What you did was try and railroad the discussion by claiming that I and the other commenters were making a simple error of fact, when we were doing no such thing. Again, inexcusable bullying.

Katherine's interpretation is that the fourth amendment is open to the idea that all searches are unreasonable. It clearly is not. Follow the comma and you find an exception only a few words away.

And this is an idiotically tendentious reading of her comment. Of course she didn't mean that searches with a warrant in the manner prescribed by the latter clause of the fourth amendment are unconstitutional -- she was talking about reading the first clause as creating a right to security in the home and the person outside the specific context of law enforcement searches.

Katherine's (and, roughly, my -- I don't know that we agree on everything, but in general approach she's pretty much on)reading of the Constitution is not as disassociated from the text as you claim, and yours is not as strictly limited by the text as you claim. There's no way to interpret the Bill of Rights in a manner that's strictly limited by the text -- it just isn't written at a level of specificity that makes that possible.

Katherine's comment is "but I do think it leaves open the possibility that invasions of the security of the person and the home are inherently unreasonable."

Is she arguing that philosophically it is open that invasions of the security of the person and home are inherently unreasonable, or that the 4th amendment says such a thing?

Philosophically the question is of course open. Trivially all questions are open philosophically. But the 4th amendment certainly says no such thing. The 4th amendment has specific exceptions and talks about searches and seizures. This immediately shows that her interpretation is incorrect. The 4th amendment cannot possibly leave open the question of whether or not "invasions of the security of the person and the home are inherently unreasonable." The 4th amendment outlines an area where they are reasonable. It doesn't leave the question open at all. It specifically shows that some are ok.

Common law is traditionally distinct from statutory law. Common law in the context of our discussion is that which is not moored to statute. This is clear from the context of our discussion where you make the claim that judges have a responsibility to do justice unless they bump up against statutes. Constitutional law is not common law in that sense--as you admit much later in the conversation. Statutory interpretation is not common law in that sense. Trademark law is not common law in that sense. Admiralty law may be, I don't know enough about it. Evidence law is defintitely not law in that sense. Anti-trust law is an interesting hybrid in that the statutes specifically abdicate some responsibility to the judges. Federal law does not operate as common law in that sense. I would argue that what we understand as regular non-statutory common law of the states doesn't operate like that either. But most of what you talk about is statutory interpretation law, not common law. The blend of common law stare decisis concepts married to more civil statutory interpretation is interesting, but it does not make statutory interpretation common law in the sense of 'doing justice' that you want it to be.

I don't suppose it's worth pointing out that something can be unreasonable but still permissible? Just as it's probably not worth pointing out that in regards to the First Amendment, there is no legal tradition under which "no law" actually means "no law, period?" These are exactly the kind of ambiguities people are getting at that Sebastian wants to ignore away, I guess.

BTW, I'm not claiming specialized language knowledge is necessary to read the 4th amendment. I think it is slightly odd sounding in construction because of usage, but that your average reader today could clearly understand it. The problem is of over-intellectualizing it. It is much the same problem that makes it possible for the NYT to year after year be mystified by the idea that prison incarceration can go up as crime goes down. You have to have a degree to think that is a paradox.

Sebastian:

Anti-trust law is an interesting hybrid in that the statutes specifically abdicate some responsibility to the judges.

Actually, they don't "specifically" do that. They are instead like large parts of the Constitution, and the Bill of Rights in particular -- broad statements of legal principle that require a great deal of judge law-making to flesh out meaning. That is why there is so much judge-made law for anti-trust law -- the statutes only provides a general pronouncement, and the rest is up to the courts.

Since you understand how this "hybrid" situation works for anti-trust law, you understand why that is also how much of the Constitution must be dealt with by courts. A method of interpretation more typically used for statutes is simply not available because the Constitution has too little language in it for many of its broad and sweeping concepts.

By way of analogy, I assume you are familiar with the scholarly bodies that write model statutory schemes. Imagine if they were going to rewrite the Constitution so that it had the level of clarity and depth of modern statuory schemes. The rewrite would run to hundreds of pages, and then you could use more traditional statutory analysis to interpret the document.

Sebastian --

Katherine's comment is "but I do think it leaves open the possibility that invasions of the security of the person and the home are inherently unreasonable."

Is she arguing that philosophically it is open that invasions of the security of the person and home are inherently unreasonable, or that the 4th amendment says such a thing?

Philosophically the question is of course open. Trivially all questions are open philosophically. But the 4th amendment certainly says no such thing. The 4th amendment has specific exceptions and talks about searches and seizures. This immediately shows that her interpretation is incorrect.

I'm really surprised that you persist in this bullshit after I've pointed it out to you. Interpreting Katherine's remark as meaning that she doesn't recognize the existence and constitutionality of warranted searches is an astonishingly nasty and petty argumentative tactic -- do you really have the chutzpah to say that you believe that to be her position on the fourth amendment?

This is clear from the context of our discussion where you make the claim that judges have a responsibility to do justice unless they bump up against statutes.

And this, although less egregiously ridiculous, is also nonsense. As I have been saying from the beginning of this conversation, part of a federal judge's responsibility is to make law where statutes or the Constitution are ambiguous. The Bill of Rights is a broad and ambiguous document, and a literal application of its words would not allow a judge to resolve a tenth of the cases that raise the rights alluded to therein -- it cannot function without interpretive, judge-made, caselaw.

"part of a federal judge's responsibility is to make law where statutes or the Constitution are ambiguous."

Whoa, that is an astonishing climb down from the idea you profess upthread that federal judges are empowered to do justice anytime they don't bump up against statutes or the Constitution.

"Interpreting Katherine's remark as meaning that she doesn't recognize the existence and constitutionality of warranted searches is an astonishingly nasty and petty argumentative tactic -- do you really have the chutzpah to say that you believe that to be her position on the fourth amendment?"

I don't have to interpret. She specifically says that it is an open question whether or not and I quote: "but I do think it leaves open the possibility that invasions of the security of the person and the home are inherently unreasonable."

It isn't an open question. It is an obvious no. She had repeated chances to clarify, and chose to attack me as an idiot and make allusions to thinking from a little Red Book instead. It came up with respect to Roe v. Wade, so the question of stretched out meanings was already well on the table.

If you want to read my 5/3 2:45, and 5/3 2:13, and in light of those posts think either that my position has changed or that you've reasonably represented it, go right ahead.

I don't have to interpret.

At this point you are so far from any rational or honest interpretation of what's been written in this thread that I have no idea how I might communicate with you.

Welcome to my world dealing with you.

"This, very much so -- where a judge needs to make new law because the current law doesn't address the controversy before them, there are no better reasons for them to rely on than considerations of justice and good public policy, which are very much political reasons. Now, a decision that is politically (socially, as a matter of policy) desireable in the eyes of the judge may be contrary to statute or to a constitution, and at that point a judge who makes such a decision is making bad law, even if they're making good policy."

and

"when they are presented with a controversy between two parties, and the binding sources of law do not prescribe an answer, the judge's duty is to make a decision on some basis (public policy, analogy with similar situations, their own sense of justice and equity) and that decision becomes the law."

Is not equivalent to "part of a federal judge's responsibility is to make law where statutes or the Constitution are ambiguous."

which still isn't even correct. The federal judge is supposed to take ambiguous situations where found and apply the statutes in a way which sets a precedent for future cases. But this has a primary focus in the statute. Your other arguments do not have a primary focus in the statute. They have a primary focus in doing justice unless the judge hits a statute which governs. The two positions are not equivalent. Trying to distinguish between them is the whole problem--which you aren't even acknowledging exists.

I'm done with you on this. If you want people to engage with you respectfully, you have to treat their arguments with honesty and respect.

I am so crushing both your heads.

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