us to ponder a recent
by George Will, who says, in the context of a picayune dispute among a group of people whom he obviously thinks are a bunch of rubes (actually, the “people” of Pinal County are salt-of-the-earth regular guys and gals who love their families but are not averse to some clean fun, and who elect secret admirers of the Gestapo to rule over them):
there is this mighty oak of a principle: There must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say.
I don’t know whether this principle is a mighty oak or not, but it’s hardly news. Any lawyer would tell you the same thing if he could stay awake long enough to finish the sentence. If courts didn’t do this, there wouldn’t be much point in having a legislature. Why Will thinks that a court interpreting a statute according to its meaning is “judicial activism” is beyond me. Maybe, he’s confusing statutory interpretation with the opposite practice of striking down a statute because it violates the Constitution. Starting from the premise that local courts should enforce the “plain language” of the relevant zoning ordinance so as to constrain the power-mad officials of Pinal County, Will concludes that courts should strike down these ordinances because they violate the Constitution. So which is it? Uphold or strike down?
Adam seems worried about whether Will’s legal philosophy should be called “conservative jurisprudence.” He seems relieved that the answer is yes. But what is “conservative jurisprudence,” anyway? Jurisprudence is the study of law; is “conservative jurisprudence” like “conservative geology” or “conservative astrophysics”? Would Scalia and Thomas agree that their jurisprudence is “conservative” or would they just say it is “correct”? What happens if Will’s jurisprudence turns out not to be conservative? Does he have to turn in some special key or a funny hat? Is the correctness or not of Will’s jurisprudence relevant to the issue of whether it is conservative? Or is the idea that “correct” is just an unnecessarily simple way of saying “conservative”?
Reading Adam’s post, I feel that I have stumbled across a secret meeting where everyone is wearing costumes and speaking in code. If I am going to take a place in the blogosphere, I will have to learn this code myself. So someone please help me. Why would conservatives or anyone else have a nerve touched by Will’s column? Is it because one can derive (as I learned in logic) any proposition (“war is peace,” “black is white,” “taxes are good”) from two contradictory premises? Should this bother only conservatives but not liberals? And why does it matter whether someone’s jurisprudence counts as “conservative” or not? Is the idea that jurisprudence is “conservative” if it generates right-wing case outcomes–for example, Republicans always win and Democrats always lose? If a judge resolves a breach of contract dispute by decreeing that neither party may have an abortion, does this count as “conservative jurisprudence”? If someone’s jurisprudence produces liberal case outcomes, does that mean his jurisprudence is wrong, or just that he is denied entry into the clubhouse? Adam, someone, help?