From: mls@panix.com (Michael Siemon)
Subject: Re: Judicial Power = "Create" Law? Founders Said Yes.
Summary: integration
Organization: Panix Public Access Internet & Unix, NYC
Distribution: usa
Date: Sat, 23 Jan 1993 05:11:35 GMT

In article <1jna9jINNdn4@darkstar.UCSC.EDU> spencer@cats.ucsc.edu (Michael Spencer) writes:
>
>Ted Frank makes the best case against "original intent" jurisprudence
>that I have seen in a long time. But he doesn't really come to grips
>with the problem that the alternative is that the Constitution
>depends on the result of the last election.

>Wnat to give it a try, Ted?

The objection is nonsensical (and has been already refuted by an earlier
posting).  Even at the extreme in which one assumes that judicial inter-
pretation is arbitrary (and why should one assume any such thing?), it
would only be the case that the Constitution "depends" on the accumulated
opinions of judges appointed by the winners of ALL the elections since
the adoption of the Constitution.  While such a "summation" may have its
own problems, a restriction of causation to *current* political fashion
is NOT one of them.

Judicial appointments by one administration (or sequence of ideologically
sympatico administrations) have EVIDENT influence on the sorts of things
one reads in the papers as current court news.  But it is equally evident
that the ideology of recent appointees is NEVER the only influence, and
it is determinative only if external politics has allowed the ideological
filter to completely swamp all other consequences of earlier causes.  One
need only look at the history of Roe v. Wade for the last 20 years to see
that "the Constitution depends on the result of the last election" is
patently false.  The Reagan/Bush SC (and lower court) appointments could
not move constitutional law to where THEY wanted it (though it moved in
their direction), and a Clinton administration will not even BEGIN to have
an effect on this until voices he appoints enter into the discourse -- 
and then they will be spotty until/unless many years and judgeships pass
into history, in dialogue with all earlier jurisprudence. 

And no political considerations along such lines, however relevant, can
completely abrogate a legal tradition that *intends* independence from
the political pursuits of executive or legislative branches.  Human affairs
are always a bit messy, so tidy conceptualizations aren't going to be
adequate to describe legal reality.  That reality includes notice that
law, and its necessary interpretation by courts, has a history that is
influenced but not "controlled" by contemporary politics.

Live with it; that's what "law" MEANS in human reality.  Ted's remarks
about the framers simply show that they were intelligent observers of
the world they inherited and restructured.  Ideologues who wish to turn
a blind eye to the operations of justice in a human world will pervert
all statments of insightful 18th century observers into bad arguments
for the ideological goal, this bizarre political attempt to constrain
courts to do exactly and only what some critic WANTS them to do, while
avoiding everyting else.  The goal is nonsense.  Courts *intend* justice;
they are limited by their understanding of law and life, but they are
also free to apply their intent wherever they can see an application in
a case at law, or equity.  If they do NOT have that power, they are NOT
courts -- and if they do, their decisions *are* law.
-- 
Michael L. Siemon	"We honour founders of these starving cities
mls@panix.com		 Whose honour is the image of our sorrow ...
			 They built by rivers and at night the water
			 Running past the windows comforted their sorrow."
Newsgroups: misc.legal