Don’t like judicial activism? How about jettisoning the judiciary altogether?
Both the political left and right seem to take turns accusing judges, specifically those who hand down opinions opposed to their political proclivities, of judicial activism, or judges reading into the law what just is not there. Originalists call for judicial interpretations that read legislative texts (including the constitution) exactly as drafters intended. In contrast, others want judicial rulings to account for a “living constitution” that reflects the times and will of the people.
Unfortunately, I doubt any judicial ruling is going to please everyone all the time, let alone even some of the time. When there are winners, there must be losers.
But what if we could dispense with judges all together? What if we could be governed completely by legislative texts? In an interesting paper, Peter Tiersma examines the possibility in a new essay entitled “The Rule of Text: Is it Possible to Govern Using (Only) Statutes?“:
This essay explores whether it is possible to govern solely by means of written text, with little or no interpretive discretion allowed to judges. The rule of text, as we might refer to this concept, appears to be a goal that textualist judges are hoping to achieve. The essay first reviews the attractions of written law, which came into being not long after writing was invented. Yet it was only in the late eighteenth and early nineteenth centuries that rulers like Frederick the Great of Prussia and later the French revolutionaries tried to govern their nations by means of comprehensive codes of law, which judges were forbidden to interpret. Those efforts to implement a pure form of the rule of text largely failed. Next, we consider several U.S. Supreme Court cases that involved interpretive questions. Could the problems have been avoided by more careful drafting? I conclude that mistakes and ambiguities can in principle be prevented at the drafting stage or be solved by means of amendment after they are discovered, but that vagueness is a far more difficult problem. To the extent that the rule of text demands that judges not interpret, they would have to refer statutory uncertainties to the legislature. Both the Prussians and the French had a procedure of this kind, sometimes known as référé legislatif. Asking the legislature to interpret statutes ultimately proved impractical. Although to some extent it violates the separation of powers, there seems to be no feasible alternative to giving judges the authority to resolve the uncertainties that inevitably arise in written text.
Thoughts? Are you ready to take the plunge in to a “rule by text?”
(h/t Josh Blackman)
- More from Justice Scalia on the Cannon Against Superfluity (joshblackman.com)
- Justice Scalia and “Judicial Maximalism.” (joshblackman.com)
- Is Judiciary Crossing Its Limits (indialawyers.wordpress.com)
- Judge H. Lee Sarokin: Conservatives Enraged Over Judicial Activism Displayed in Health Care Bill Ruling (huffingtonpost.com)