Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Thursday, October 27, 2005

too much about nothing

Michael, at "too much about nothing," quotes a fabulous passage from Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting), which I reproduce in precisely the same contour as Michael does:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

He (Michael) goes on to explain the difference between value-driven constitutional interpretation and results orientation, the latter of which often is what is supposedly picked out by judicial activism and the former of which often is what the latter charge misidentifies. As Michael points out, values-driven judgments are not free-wheeling; they are, when executed by judges with integrity and an understanding of their role in our form of government, actually rather constrained.

The only meaningful difference between such judges and more "conservative" jurists is that the latter, contra Justice Harlan, tend to view tradition as something fixed in time right around the 1790's. Granted, that time frame is indexed to the Framing, which is a not inconsequential date in the larger scheme of things, but the Framers viewed their government as heavily informed by several preceding centuries of English law, tweaked to accommodate the immediate circumstances. Nothing in the historical record of the Framing suggests that its authors, to the extent they agreed on anything, imagined themselves to be enacting a document designed to cover all contingencies or to anticipate all societal mores (the evolution of which they were well aware of; indeed, they had just fought a bloody war to defend their right to live under their own, such as they might be).

Harlan's opinion is notable for its recognition that our "tradition," the tradition that informs constitutional interpretation, "is a living thing." If it weren't, our traditions still would be those of our dark-skinned ancestors who emanated from Africa all those years ago (or, in a nod to Christians, those values embodied in the post-Fall world identified in the Old Testament, in which case everything except parking tickets is liable to get one smited rather severely), or more imminently of the pre-Norman Angles, whose ideas of justice, let's just say, deviated considerably from those we now identify as those produced by a long tradition.

If tradition weren't a living thing, there would be no revolutions, no political upheavals, and there would be very little need for judges at all, as by now things would have become rather mechanistic.

That's neither the world I live in nor a world I care to live in. You should read Michael's parallel discussion of the passage in its proper context.

And with that, too much about nothing should appear shortly in the Blogroll under Friends, something I've been meaning to do for a while.

UPDATE: I have edited the above to remove a reference to "the Court's decision" in Poe. As noted elsewhere, Justice Harlan wrote in dissent, and thus his comments were not associated with the decision of the Court.


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