IRSHAD SALIM: A friend of mine in the US who has been reading a lot about major legal and constitutional cases in Pakistan–particularly suo moto and the Supreme Court’s verdicts dubbed “judicial activism”–even “judicial coup”, shared an abridged version of an article that appeared in the Harvard Law Review journal in 2016. Reading it and rewinding many of the views published in local newspapers related to top court’s decisions, I’m tempted to compare the two on the scale of broad-stroked arguments and brave to conclude that at the end of the day we must all respect the verdicts sans cynicism and advancement of ‘conspiracy theories’, particularly by the media. The Constitution means what judges say it means. They interpret it–and we and subsequently the constitution itself gives them the right to do so. The authority can’t be withdrawn or curtailed even if all (including parties, civil societies, etc.) of us stand on our heads as it’s the key derivative of State and the Nation concept and the social contract civilized societies practice.
The following abridged article below (response from a writer) highlights 2 judges and a scholar’s views on interpreting the Constitution based on common law and pragmatism:
In February 2016, the journal published Professor David Strauss’s excellent Foreword (The Supreme Court, 2014 Term — Foreword: Does the Constitution Mean What It Says?), stating that “]T]he Constitution requires not following the dictates of the document but working out, over time, a complex balance among institutional interests. That is how we do constitutional law . . . .”
Commenting on Strauss’ suggestion (a few days earlier) that constitutional text matters little to constitutional law, Judge Richard Posner, the most cited legal scholar in the US shocked many academics attending a constitutional law conference at the Loyola University Chicago School of Law. Judge Posner remarked that following the Constitution does not mean adhering to its text but instead respecting Supreme Court interpretations of that text. Constitutional law as made by judges, Judge Posner emphasized, is much more about creating rules that make sense today than interpreting an old and often obsolete document.
He said that when he decides cases, he does not care what people in the late eighteenth century thought about today’s legal issues or even what the constitutional text says about those problems.
The only useful way to advocate with regard to constitutional law is to give a good contemporary argument for or against a particular interpretation.
Judge Posner explicitly argued that the text is irrelevant to Supreme Court Justices when they decide constitutional questions.
Judge Posner, in his talk in Chicago, described his view of constitutional interpretation as follows:
I’m a pragmatist. I see judges as trying to improve things within certain bounds. There are practical restrictions on the exercise of one’s moral views. There are specific laws that are deeply entrenched. Where the judges are free, their aim, my aim, is to try to improve things. My approach with judging cases is not to worry initially about doctrine [and] precedent . . . [,] but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense . . . solution.
Judge Posner’s remarks created significant controversy that night (and on social media), possibly because he said exactly what Strauss warns is “never” appropriate: that it is perfectly fine (even desirable) for judges to “ignore” constitutional text.
Judge Posner made his Chicago remarks when responding to a talk by Professor Randy Barnett describing his book, Our Republican Constitution.
Barnett told the audience that he believes the text of the Constitution sets forth a “republican” and not “democratic” model of government in which individuals, not majorities, are sovereign and where rights precede government.
Judge Posner and Strauss do agree substantially on how the Supreme Court decides constitutional law cases. In his Foreword, Strauss persuasively details how the US Supreme Court follows a common law approach to constitutional decisionmaking in which the Justices rely primarily on the Court’s prior decisions when deciding cases. He argues that constitutional text is usually irrelevant to constitutional outcomes, and he presents specific examples of decisions completely at odds with what appears to be unambiguous language. Strauss’s article eloquently supports Judge Posner’s antitextual remarks.
Straus argues that in constitutional litigation, the Constitution means what judges say it means.
And Judge Posner argued that even constitutional provisions that are clear, such as the requirements that people have a right to a jury trial where the amount in controversy is over twenty dollars or that the President must be thirty-five, might be ignored by judges if the provisions make no sense in modern times. Judges might accomplish this transformation of the text by finding certain constitutional provisions judicially unenforceable or by creative argumentation. Either way, Judge Posner was clear that judges should veer away from, or even ignore, clear text if modern conditions so require.
Judge Posner conceded that the Constitution provides general guidelines that he must respect, such as vague preferences for freedom of speech and religion and against unreasonable searches and seizures and cruel and unusual punishments. Those vague preferences, however, while perhaps important to the public at large, do not decide litigated cases:
What would the framers of the [Fourth Amendment] have thought about [n]ational security surveillance of people’s emails[?] That is a meaningless question. It is not an interpretive question, it is a creative question. . . . The [Constitution] cannot resolve it . . . by thinking about the intentions, the notes of the constitutional convention, [or] other sources from the 18th century. This seems to be the standard problem for judges . . . . It is not interpretation, it is just trying to find . . . a solution to a question that has not been solved by the legislature.
According to my friend, we have an ongoing battle between groups reading too much into texts with a preset mind to challenge verdicts compounded by overly discussing the court proceedings on our “free” media, while majority of those settle and move on for another day– even if the verdict is not what he or she was expecting.
Read the full article here:
(The writer is a Pakistani-American business & construction consultant, analyst, and Editor-in-Chief of PKonweb, DesPardes and BE2C2 Report)