Last Licks

After a few days I usually stop checking to see if there have been any more comments. And while I try to reply to questions, I certainly don't mind letting a reader have the last word. In fact, nothing would please me more than having so many comments I could let the readers argue with each other.

However, I just noticed a comment I'd missed on my Bork post almost a week ago. Let me respond.

First, the reader uses the old line, along with Bork, taking the stance that judges should interpret the law, not legislate from the bench. Well, guess what? Pretty much everyone agrees with this. The question is what is interpretation and what is more than that. Unfortunately, Bork simplistically claims that it's an easy distinction--he knows how to do it while judges who come to different outcomes don't. His "examples," then, are actually differences of interpretation which Bork avoids discussing by claiming other arguments are out of bounds--as if these judges know what the proper outcome is, but blithely decide to legislate instead.

(The reader doesn't like the phrase "mindless dogma." I think it makes useful distinction--some dogma can be useful, even penetrating. And claiming that conservatives judges, or originalists, interpret the law while liberals, or activists, legislate is part of mindless dogma that prevents serious discussion of the courts.)

It's a judge's job to defer, in general, to legislatures (and administrative bodies). However, there are certain other considerations. Foremost, I suppose, is that there are higher laws (in particular the Constitution) which must take precedence. Second, there are conflicting laws and it's not easy to make them all work together, or decide which is to be followed. Finally, and inevitably, there are confusing statutes, and it's the court's job to decide what the legislature meant, especially since language is naturally vague and legislators can't figure every possible case that might arise under a law. If they are unhappy with a court's interpretation, they can pass new laws, and often do.

In a Democracy, the people hold sway, but there are certain areas, many distinctly enunciated in the Constitution, that are essentially off-limits. In other words, our Founding Fathers favored democracy but didn't trust the people to decide everything. (Actually, if you read the Constitution, you'll discover they had certain fears about democracy and put up buffers--direct voting was only for only one-half of one of the three branches of government) They understood that in any given era, there will be certain majorities, with certain passions, who will try to push their advantage too far--the courts are the greatest bulwark against this usurpation of freedom, and if they have to trash hundreds of laws to do their duty, so be it.