Josh Blackman makes crystal clear the arbitrary nature of much that passes for judicial thinking, these days. Judge Richard Posner, of the Seventh Circuit, candidly admits that his legal reasoning — in general and in the case of redefining the long-standing institution of marriage — begins by determining what he thinks is right and then looking to legal documents and precedent only to build a bridge of reasoning, however slapdash it may be. Here’s Posner:
Law is not a science, and judges are not calculating machines. Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.
Of course law is not science, but the art of it is not figuring out how to make written words apply as the judge wants to a particular question. Rather, the art is in sorting through the facts of a specific case to determine how the written words of the law apply to it. Ordinances, statutes, and federal laws, as well as local charters and state and federal constitutions have processes for changing them. If something is “absurd,” as Posner says of a Constitutional $20 monetary boundary for jury cases, then it should be pretty easy to change through the appropriate channels. Judges need only get the ball rolling with Congress for an amendment that would either change the dollar amount to something that makes more sense, given the current value of money, or define some gauge for inflation or some other measure within the Constitution itself. Simple.
If “constitutional law is the most amorphous body of American law,” it is because judges have seen fit to twist it in so many ways. That’s not a rationale for continuing behavior, it’s a problem.
And the reason it’s a problem is that it makes the law not about consentual rules to which we’ve agreed by some process of representative democracy, but all about power. Posner & Co. simply don’t like unfashionable rules, like the opposite-sex definition of marriage, so they rewrite those. In contrast, as Blackman points out, they’re perfectly content to fill out lifetime judgeships, even though it’s clearly “absurd” to think the Constitution foresaw lifespans pushing 90, with judges occupying their seats for the span of five-to-ten presidencies.
The mandarins of the judiciary trust that the rest of the mechanisms of government will continue to enforce their decrees and protect them from an increasingly disenfranchised public. As Glenn Reynolds puts it:
The only reason for not tarring and feathering any government official for effrontery when they tell us what to do is that their power to do so is somehow legitimate. But that legitimacy comes from the exercise of constitutional power. If the Constitution doesn’t mean anything, well, then, maybe it’s time to go long on pitchforks. Because without the Constitution the angry mob is just as legitimate as the perfumed princes of the state.
We’re entering dangerous times because those perfumed princes have left little space between violent revolution, on one side, and totalitarian oppression, on the other, and we’re fast approaching a decision point between the two. Depending where one lives in the United States, government has no moral legitimacy at any level, from the local to the federal. The only question is a calculation of odds for overthrow, particularly versus the ease of moving, while that option still exists.