Do Conservatives Follow the Framers -- or the French?

Who declared that the country's legal system is "poorly organized if a judge enjoys the dangerous privilege of interpreting the law or adding to its provisions?" Was it Senator Lindsey Graham last week, questioning Sonia Sotomayor about her supposed "judicial activism?" Or perhaps Justice Antonin Scalia in one of his biting dissents? Actually, no. It was French lawyer Nicolas Bergasse, in a 1789 report to France's National Assembly recommending that judges' power be reduced.

And what document said that "the courts may not directly or indirectly take any part in the exercise of the legislative power," adding that "judicial functions ... will always remain separate from the executive functions?" Was it a proposal by President Bush's Department of Justice? Or perhaps a bill submitted by congressional Republicans to prevent "legislating from the bench?" Actually, no. It was France's famous Law on Judicial Organization, enacted at the height of the French Revolution.

It is no coincidence that American conservatives now sound like French revolutionaries when they talk about legal issues. To a startling degree, they have embraced the historic continental-European skepticism of judges and courts over the last generation. Like eighteenth- and nineteenth-century Europeans, today's American conservatives wax eloquent about the primacy of the legislature and the importance of sticking to the statutory text. Also like those Europeans, conservatives argue that judges should be highly restrained in their decisions, ever-vigilant against enacting their own policy preferences into law. As the 2008 Republican platform put it, in words that could have been uttered by Robespierre, "judicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy ... and imposing their personal opinions upon the public."

The great irony here is that conservatives have embraced the continental-European model over its traditional rival, the Anglo-American system of the common law. Under the common law, judges were free to consider the consequences of their decisions and to try to realize important societal values. Legal rules evolved over time as judges followed wise precedents and revised or rejected flawed ones. Statutes were respected but, where possible, interpreted so that they did not conflict with the courts' decisions. As Blackstone, greatest of the common law thinkers, wrote, judges are "the depositories of the laws; the living oracles," responsible for deciding cases with "liberality of sentiment" so that "manifestly absurd or unjust results" are avoided. Try to imagine Justice Scalia saying that.

Why, then, have conservatives turned their backs on the system that served England and America well for centuries? Aren't they supposed to value tradition and dislike radical new ideas (especially French ones)?

Conservatives' typical answer is that the common law method is inapplicable because of America's written Constitution, which supposedly requires judges to defer to the Framers' intent. But statutes, which are also in writing and reflective of the people's will, have always been a key feature of the Anglo-American legal landscape. Judges somehow managed to interpret and apply them for hundreds of years without being branded as would-be legislators in black robes. The Constitution's sweeping generalities -- "due process," "equal protection," "the freedom of speech" -- are also evocative of Blackstone's "liberty of Englishmen," which common law courts diligently defended. Constitutional interpretation is simply not as unique as conservatives think.

A more plausible explanation for conservatives' current devotion to textualism and originalism is that they think these techniques produce preferable outcomes. Crucially, conservatives' rejection of the common law method was not consummated until the 1980s, when President Reagan announced his commitment to "strict constructionist" judges and the Department of Justice ordered its attorneys to focus on "original intent" arguments. The 1980s, of course, followed several decades of progressive Supreme Court decisions, many of which, in classic common law fashion, examined precedents and appealed to enduring American values. It was only in the wake of these decisions that conservatives decided it was time to redefine what it means to be a judge.

But more significant than why conservatives now reject the common law method is the stark fact that they do so. As University of Chicago Law Professor David Strauss has noted, "the common law is the most distinctive feature of our legal system and of the English system from which it is descended." Yet without almost anyone noticing, a major legal movement and one of America's two great political parties have disowned the historic heart of Anglo-American law. Even more shockingly, they have adopted in its place the continental-European critique of judges who consult non-textual sources and take policy considerations into account in their decisions.

Conservatives, of course, are entitled to embrace whatever model of judging they want. But the rest of us should be aware of the breathtaking reversal that their model would represent if implemented. Especially with a Supreme Court nomination pending, we should remember that for centuries "judicial activists" were not villains but rather the heroes of the common law.

A version of this piece was published in the Philadelphia Inquirer.

Comments

[mld678]

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[johnashman]

Supreme Court judges are the most important of judges and ideally the most strict, not just because they have the final say, but also because they are there to understand and preserve the intent of the Constitution. Liberals say that the Constitution is/should be a "living, breathing document" that adjusts to modern times not imagined by the founding fathers. But this is not the case. This is the reason for the ability to amend the Constitution. The Constitution has three primary purposes - create the framework for the government, enshrine the rights of the people and create hard boundaries for the power of government. The latter, derisively called "negative rights" by our president, is also known as "protections".

It is the SC's job to decide whether federal officials are operating legally and whether laws written by congress are constitutional. It is not their job to bend the law, it is their job to inform the congress that it has to be altered. The idea of a SCJ that is "liberal" is horrifying because it creates new powers for this entity, while creating inconsistency, often based on the also horrifying concept of "precedent". If a previous SC decision was based on "liberal" bending of the law, then it needs to be reversed. Such as the decision to allow states to take property from one private citizen and give it to another. Conservatives want judges to "conserve" the intent of the Constitution, not turn it into a meaningless free-for-all.

[tugofpolitics]

Good point in this article, but I don't want a judge on the Supreme Court that thinks 'bearing arms' is what Michelle Obama does in a photo-op, or that the freedom from religion is somewhere in the Bill of Rights. If a judge can rewrite the laws framing our Constitutional Republic by citing 'popular interpretation' or some such than the words of Robespierre ring very much true.

I'm just saying that as a general rule, not in light of public events or the nomination of Sotomayor. On the other hand, it is my opinion that Sotomayor isn't qualified. Granted, as far as bad goes, she's got a fair shake to be better than a lot of her potential peers.

[DownerCow]

I would instead compare current US conservatives to Vendee Rebels: Wealthy landowners who hid behind the Catholic Church to challenge the Republic created by the French Revolution.

[laocoon]

I thought it was well established from the earliest days that federal courts had no common law powers. this was the interpretation of the constitution by a federal court. what conservatives complain about is interpretations that they disagree with. courts still must apply the law which means the law must be interpreted. for political reasons the distinctions are often obscured.

[Torus34]

There is an old saying to the effect that there are no athiests in foxholes.

Whilst we do not expect to see 'strict constructionist' conservatives in foxholes, we can reasonably assume that at some time some of them may be caught with their fingers in the till.

And when this happens, we can be sure that they will go a-shopping for a judge who will bend the law as far as possible in their favor.

At the close of business, It all depends upon whose ox is gored, doesn't it?

[JohnJay60]

My dad (an aging Republican) is still mad that the supreme court interfered in Brown v. Board of Ed in 1954.

I would like someone to confront Conservative 'legislate from the bench = bad' and have them approve or disapprove of the Brown v. BoE decision. Supreme Court clearly overturned the behavior the citizens of Topeka intended.

[faceplant]

Another way it occurs to me that conservative legal philosophy appears similar to the French is its stand on the presumption of innocence. The French system presumes guilt. If conservatives had their way, while the law might still theoretically grant a presumption of innocence, in practice there wouldn't be any.

[mazaza]

No. We presume innocence. The prosecutor has to prove you're guilty.

[newleaf]

Republicans - the party of "do as I say, not as I do"

[ewoman]

Well said, Mr. Stephanopoulos.

[larry278]

It's more accurate to say that American neo-cons are acting like revolting French men who embrace any extreme ideology.

[OkieIntellectual]

I would be very careful about comparing neo-cons to the revolutionaries who stormed the gates of the Bastille. Remember, before the revolution France was a den of corrupt royalty and politicans. The revolution happened because the common people got fed up with the excesses of the wealthy and powerful and with the injustice of the law. Unfortunately those who took power ended up being just as corrupt as the people they deposed.

That's my understanding of it anyway, though I admit I've never studied it in great detail.

[BLBass]

Mr. Stephanopoulos seems to be talking about movement conservatives, your Scalias and Reagans, not neo-cons like Kristol or Wolfowitz. As I understand neo-cons, at least initially, they were liberals (often intellectual Jews) who became disillusioned during the Cold War and Vietnam. http://www.sourcewatch.org/index.php?title=Neo-conservative defines them as coming from a tradition of liberal, internationalist anti-communism. I suppose it's true that they didn't so much rebel and become conservative but that other liberals became less interventi­onist/anti­-communist­, and the neo-cons defaulted to the more hawkish party. The neo-con engagement with the judiciary seems to be rooted mostly in electoral politics, not with philosophical ideals of judgment.

All that said, I think the intellectual strands that Mr. Stephanopoulos traces here certainly connect neo-cons to French revolutionaries as well. In both cases, a liberalizing impulse was drowned in reactionary warmongering. Granted, Napoleon/R­obespierre did much of that without popular support so much as with coercion by fear, while the neo-cons allied with reactionary elements in our society to achieve their militaristic ends. As I mentioned earlier, I also need to study the history more before forming a full opinion, but it seems that all sides of today's conservative coalition share certain thinking about right and wrong with the post-Enlightenment French, as they diverged from the traditions that led to the American revolution.

Do keep talking about this, it'll help me better understand. Anyone with suggested sources please chime in!

[NotesFromME]

Overturning the monarchy and destroying the power of the aristicracy was one thing, turning France into a chaotic bloodbath that ended up in a military dictatorship is something else entirely.

[Realization]

The "Conservatives" you refer to are anything but. Please refer to them by their proper title "Radical Right Wing Fundamentalists". The term "conservative" was hijacked and needs to be rescued.

[exxman]

Much like the word "Christian".

[phasechange]

Very interesting analysis. That brings to mind Roe v. Wade, which although it reached the right decision, relied upon a very thin reed of jurisprudence which invited disagreement. I've long wondered whether it would have been preferable for the Court to rely directly on Common Law and affirm the traditional right of the citizen against undue interference with one's personal domain. However, after reading your analysis, I can see that such reasoning might not have made a bit of difference to the authoritarian right-wingers.

[BLBass]

This is a fascinating read! You nicely crystallize the kerfuffle over our judiciary's role into a rational discussion of historical precedents. I found myself suddenly re-interested in the French Revolution, especially its thinkers and their parallels to the neo-conservatives who shaped the modern Republican party. Time for even more reading!