The difference between an ‘originalist’ judge and a ‘living Constitution’ judge is significant. Conservatives laud the first (sometimes) and damn the second; liberals damn the first and (sometimes) laud the second. Delaney approaches the question of judicial philosophy more circumspectly than the pundits, setting out six different views of the judge’s duties. These six he encapsulates in six fictional judges- Judges Vigorous, Freedom, Pragmatic, Just, Existential, and Crit. He gives each a chance to speak and some a chance to respond to the others, all on this question: “What is the proper approach for a judge to his function as a judge?” On inspection, the proper practice is reflected partially in each position, though the first and fourth have the greatest truth to them. Judges should on consciously moral grounds engage in strict-construction analysis of the spirit of the law to the extent of its actuality, avoiding legislating, in consciousness of their flaws and biases, with maximal recognition of the facts of each case.

This paper is part of my college work in pre-law; it references John Delaney’s “Learning Legal Reasoning: Briefing, Analysis, and Theory.”

(Part Two)

The discussion’s difficulty is increased by the complete lack of usable binding authority (Berring 4:00; Olson et al. 56-7). While Scripture is binding, its authority is unacknowledged by many participants. As for the Constitution (and all laws under its rubric, as well as treaties), because the interpretation of the law is the question under discussion, the law’s mandating authority is vitiated by the impossibility of interpreting it prior to the conclusion is would speak to. Thus, all authorities, even binding authorities, must be treated as persuasive.

Judge Vigorous

Judge Vigorous is the first to speak in Delaney’s scenario. She presents a ‘strict construction’ perspective, asserting that the statutes and their words must be interpreted exactly as intended, without extension or retreat (Delaney 111). The judge was made by the law, and so the judge acts by the law, his only authority and existence. In this, Judge Vigorous adopts a strong and substantially true position on the judge’s responsibility, but her position nevertheless will benefit from the contributions and modifications of the other five judges (even the fifth).

Judge Vigorous accords with the intent of the Founders as to how the legislature and judiciary were to be related, as the giver of law and the means of applying that law. This harmony is clear from Madison’s speech proposing the Bill of Rights to Congress: “[T]he legislative department shall never exercise the powers vested in the executive or judicial…, nor the judicial exercise the powers vested in the legislative or executive departments” (Speech, 175). This same directive, slightly modified in grammar, would also appear in the House’s proposal to the Senate (“Constitutional Amendments,” 186).

This structure was, moreover, integral to the basic idea of Constitutionality in the American application. Rawle, a prominent legal writer of the early 1800s, summed the judiciary’s role as being to “to expound and apply” the legislature’s work and the Constitution (123). The Constitution is the ruling law of the land, binding over all other law (barring treaties) and in that sense legislative. If it was subject to being carried beyond the intent invested in it at the beginning, this judicial role would immediately be to rewrite the Constitution in meaning, though not word, an activity incompatible with ‘expounding’ the law. More, the Federalist arguments for the Constitution would ring hollow, for a judge unbound by the words of the Constitution could ignore that the Constitution did not grant a power he desired to hold (Wilson 122). Judge Vigorous must be right in the basic element, or the Constitution is useless eventually, if for practical reasons not immediately.

Judge Freedom

Judge Freedom succeeds Judge Vigorous, presenting what seems to be a minor adjustment. He argues that while strict construction is desirable where the law provides for it, the law demands a different method: policy analysis. To him, strict construction is desirable as a policy, not in itself. Thus, he desires judges to rely on the instruction found in case law as to how to judge the intent and spirit of the law (Delaney 113-5). While he provides a necessary nuance to Judge Vigorous’s stark analysis, he exceeds the alteration that nuance can justify.

Freedom is correct to identify a common lack of legislative clarity (114). Laws often come to the judge strewn with ambiguities: ill-considered phrases, value judgements, and simple failures to provide suitable mechanism. These ambiguities can be resolved into two categories: terminology which requires interpretation and insufficiency of mechanism (where even full interpretation leaves the law manifestly requiring modification to reach its goal). A third category could be proposed, of law logically impossible to apply even after complete interpretation, but this proposal is not useful, as that case can be considered as a subset of the other two.

With the first class of ambiguity, the appropriate method is good-faith interpretation in search of the author’s intent, as court precedent in self-defense law will corroborate. The term ‘reasonable,’ actually cited on page 114 by Judge Freedom as part of the fuzzy terminology which requires policy interpretation, has received careful attention from the courts in the self-defense context (Delaney). ‘Reasonableness’ is the fifth of the five elements of a self-defense defense under current American law, an element which modifies the other four, as each must be ‘reasonable’ to be valid (Branca 113-4). A usable definition is therefore essential to self-defense law.

Andrew Branca, noted expert in the field, lays out this usable definition in layman’s terms on pages 113-127 of his book. ‘Reasonableness,’ he establishes, has two parts: objective and subjective reasonableness. Objective reasonableness is the question of whether an “ordinary, cautious, responsible, sober, and slow to anger” person of the defendant’s stature, acting in the defendant’s place, equipped with common knowledge and what knowledge the defendant shows he possessed, would act as the defendant did (114-120). If he would, then the action was objectively reasonable; if he would not, the action was not reasonable. Subjective reasonableness, meanwhile, deals with whether the defendant believed his actions to be reasonable at the time (123, 125). While this is a rough summary, the implication is clear. Ambiguous terms such as ‘reasonableness’ can be rendered manageably non-ambiguous, even though subjective determinations cannot be entirely removed.

Inasmuch as Judge Freedom speaks to the first class of ambiguity, then, his use of legal policy and principle should not be objected to; it seems actually coordinate with Judge Vigorous’s ideal of finding the intent of the legislators (Delaney 112). The second case, however, becomes more difficult.

When the ambiguity is of this second class, the judge has two options. He can, with Judge Vigorous, follow the law as far as the letter takes him, as far as the intent of the letter takes him, and no farther. If a law bans the production of broccoli in order to combat obesity, this judge will uphold the banning of broccoli, regarding the inconsistency as the legislature’s problem and not his own (117). If he eschews this course, his second option is to follow the guidance given by the law’s goal, as the decision in Shack avows itself to (115-6). Under this course, a law seeking to combat obesity by banning broccoli would be interpreted as banning not all broccoli but only broccoli-with-cheese and other fattening broccoli-based dishes.

Judge Freedom, it appears, prefers the second course, holding that policy should be used to determine what the goal is and how to apply it. That policy will be generated by this process is notable, as the long term is that such interpretation will be extrapolation on the basis of the summation of extrapolation. Judge Freedom, however, inveigles against this course in his response, saying, “A legislative vice does not translate into a judicial duty or right,” an argument congenial to the Founders’ deliberate separation of legislative and judicial duties. He states also that such policy use quickly degenerates into politics, into the use of policy as excuse for the judge’s personal views as to what the law ought to be (116). He is in the right.

Judge Freedom’s principle, followed consistently, justifies complete departure from the law’s letter and intended mechanism in order to follow its alleged goal. In the case of the broccoli ban exhibited above, for instance, this principle justifies interpreting the ban on broccoli as a mandate to sell more broccoli, that being in the hypothetical judge’s opinion the best broccoli-adjacent way to combat obesity. A more immediately-concerning example can be found in considering a hypothetical law against murder; if the judge found this law’s attached sentence insufficient, the principle that the judge is to prefer ‘goal’ to ‘letter’ would justify his amendment of the punishment from a 2-year sentence to a swift execution post-appeal. Judges must not place their own legislative preferences above the law (120-1).

Judge Freedom, in all fairness, limits this application of goal-based extension to ambiguities; he exempts the plain language of the law from its effect (113). This does not save his position. If the ambiguity is of the first type, under scrutiny it resolves out of ambiguity into strict construction. If the ambiguity is of the second type, if a true gap exists, the judiciary must act in a legislative role if it is to fill in the gap; amending the legislature’s work by adding to the law is necessarily the legislature’s job. Admittedly, in some cases the gap is such that the judge must fill it in regardless of decision, positive or negative, if a verdict is to be rendered at all. In such cases, the judge is invested with power to apply his discernment, choosing on moral rather than legal grounds, though not to make that discrimination precedent (as doing so would be a legislative act).

Overall, Judge Freedom brings to Judge Vigorous’s position a necessary recognition of the ambiguities in law. Judge Freedom, however, exceeds law’s mandate going beyond an intent-seeking strict construction approach. Despite this, Judge Freedom has the third-best stance of the six fictional judges Delaney presents.

Judge Pragmatic

Judge Pragmatic succeeds and utterly repudiates both Vigorous and Freedom. Judges, he avers, are political actors, and as a result they both will and must make their decisions on political grounds. As he says on page 117, “We are all – whether legislators, mayors, governors or judges – participants engaged in a common enterprise: the challenging art and craft of democratic government in response to the needs of our people.” In the blunt fact of the judiciary’s political nature, he is correct. He mixes up is with ought, however, and goes astray in his morals, making his position untenable.

Pragmatic’s virtue comes in his recognition of the reality of judges: they act politically and on often-necessarily subjective grounds. Delaney as himself recognizes this elsewhere (74). All judicial decisions, particularly appellate decisions, are made in a political environment, with inevitable and sometimes immense influence from politics. The design of the judiciary even integrates the relevance of politics into its structure by making judges subject to impeachment. Many judges are political animals, as Robert Barnes will testify (Barnes, “Robert Barnes”; Barnes, “You’re Fired”). They must not be held blameless simply because they are common.

A fairly minor point, but one worthy of note, is that Pragmatic disdains the ‘legal model’ but neglects the possibility that, while not morally superior or entirely ontologically separate, it is practically a more effective way to undertake the genre of decisions which judges deal with (Delaney 117). Certainly such would be the opinion of legal orthodoxy in general for its style of writing and research (Olson et al. 1-2; Bahrych 1-2).

Pragmatic holds that because the judicial work inherently requires subjective analysis, strict construction reasoning and distinct analytical tools are useless. In part, this analysis rests on the genetic fallacy, taking origin for refutation (Delaney 117). The greater part of the argument, however, operates on the assumption that if a tool is insufficient to a task greater than its intent, it is useless. Yet this argument is not only contrary to truth, as instanced by Romans 7:7-25 and Marbury v Madison, it is contrary to Pragmatic’s own endorsement of utilitarianism (Delaney 119; Marshall). A moral standard, such as the standard each judge here propounds, is not useless or invalid because people disobey it or apply it idiosyncratically.

A positive answer being more forceful than a negative one, let the error of Pragmatic’s moral code be stated plainly: that something is does not mean it ought or ought to be. Such a link is impossible (“Is Ought”). Pragmatic himself acknowledges that people act wrongly, as he would have to deny for his standard’s assumption to be true, though (in consistency with himself) he does assert that even his opponents engage in his variety of decision-making unconsciously (Delaney 117-8, 119)

The Scriptural and Constitutional position, moreover, is against Pragmatic. The Decalogue of Exodus 20, for instance, clearly expects that men will often fail to follow it. Christ makes this even clearer in Matthew 5:21-30 by clarifying that the Decalogue applies to the heart as well as the body. Meanwhile, the American Constitution has long been understood as a standard capable of being violated which is valid despite that violation, as Marbury v Madison implicitly asserts (Marshall). This being the case, Pragmatic’s position cannot be maintained, for it rests on a premise the most significant persuasive authorities find false.

Find Part II here.

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