L. Neil Smith's

Number 1, October 1995

Who Shall Judge the Judges?

By J. Wm. Reichert, Esq.

Exclusive to The Libertarian Enterprise

         The Constitution of the United States is unique. Unlike its predecessor, the British constitution, it consists of a single written document. It is the paramount law of this nation, but unlike any other body of law, it is clear and simply written.

         The foregoing observations are particularly true of the first ten amendments to the Constitution, the Bill of Rights. They are especially true of the individual rights enumerated in the first ten amendments. Those guarantees are clear to the reader of ordinary intelligence, leading one to suppose that the framers intended to make them simple. Remembering that the Constitution was drafted by a group of men in which the legal profession was well represented, it could easily have been otherwise.
         The Constitution is elegant by reason of its clarity and simplicity. This result could not have been achieved unless the framers intended it. The founders were well acquainted with what lawyers could do to a document by way of interpreting it, and the stark simplicty of the Constitution leads me to believe that the draftsmen who composed it wanted to spare it, as far as possible, from the process of interpretation.
         In retrospect, their efforts were not adequate to keep it out of the hands of judges and lawyers. Perhaps they took on too large a task. Without attempting to search out the root causes of American constitutional jurisprudence, two hundred years of hindsight gives us an adequate perspective from which to perceive the process of decay which has taken hold of our Constitution. Or perhaps it would be more correct to identify the illness as a hypertrophy of its federalist parts, and a steady shrinking of its libertarian members. In any event, we have a pretty sick piece of parchment.
         Placing the Bill of Rights side by side with a clear statement of the actual power to control individual conduct, as that power is now vested in government, is a befuddling experience. In spite of the First Amendment, one may not practice his religion to the extent of having more than one wife. However, if he finds the practice of abortion objectionable on religious grounds, he will nonetheless be obliged to pay for the abortions had by strangers, in the form of taxes. In spite of the Second Amendment, a citizen may not own any of a wide variety of weapons suitable for use by a militia force. Though we supposedly enjoy the right to be free of unreasonable searches and seizures, the standard of what is reasonable changes according to whether we are in our car or our house. The judicial history of the Fourth Amendment consists largely of a diligent search by judges to find ways of evading the requirement of a search warrant. As citizens, we are burdened with many constitutional contradictions, and some constitutional ironies. This is not a complete list.
         What happened?
         The concise answer is: The doctrine of judicial review, and two hundred years of good lawyering.
         It is the purpose of this column to tell you the things you were never told in civics class, and to trace, in a very broad way, how a nation conceived in liberty started crawling into serfdom before it even learned to walk. The principal players in this drama are dedicated judges, good lawyers, public apathy, and the belief that all human suffering can and ought to be cured by government.
         The greater part of our law consists of the decisions handed down by courts, in the form of published judicial opinions. These opinions are usually interpretations; they do not purport to be original legislation created by the courts, but acts of intervention by them, designed to clarify statutes, interpret the constitution, or declare the rights of parties to litigation, where prior judicial precedents do not offer clear guidance. In their most pernicious form, those judicial decisions are ventures in eroding fundamental liberties, under the guise of interpreting the guarantees contained in the Bill of Rights. It is alarming to note that our judicial history is a steady progression of this erosion. If we start with the bare language of the first ten amendments to the constitution, resolving any and all ambiguities therein in favor of individual freeedom of choice, even the most cursory reading of those decisions interpreting the Bill of Rights will reveal that liberty is being steadily contracted.
         To understand the dynamics of this process, it is useless to look at judicial decisions themselves, as lawyers would do. Though there is a sense in which one decision leads to the next, inasmuch as there is a continuity in judicial thinking, no person who is more than minimally aware of the law and how it is practiced will venture to defend the view that judicial decisions evolve logically, through the consistent application of sacred first principles.
         Judicial decision making is not the implementation of philosophy,and it is not a Glass Bead Game executed on the subject matter legal rights. It is politics, and politics as usual. To appreciate where judicial decisions come from, we must understand where judges come from. Since judges come from lawyers, it would serve our understanding to discover where lawyers come from, and identify the class prejudices they take with them wherever they go.
         Stated succinctly, the only fundamental liberties that the judicial system has a chance of protecting are the fundamental liberties which a broad consensus of lawyers thinks we ought to have. Of those selected liberties, the only ones which will become the subject of a court decision are those which individual lawyers have the wit and vigor to argue on behalf of a client. It is a peculiar fact of our social and legal evolution that the protection of liberty has been entrusted to a very distinct class of professionals, the lawyering class. Quite predictably, the rights left to us are the sort of rights we can exercise without offending that class.
         This is why, from a radically libertarian point of view, the legal system never has been capable of defending liberty in the really difficult cases.

Note: The author, Joseph William Reichert, is an attorney practicing in Albuquerque, New Mexico, and concentrating in the field of appellate advocacy. He may be reached at 71511.3477@compuserve.com.

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