The Corner

Disrobing Our Masters & Prof. Tamanaha

I’m not going to get into a big thing about posting email re yesterday’s column. Many folks think I was too hard or unfair to James Dobson, many don’t. I’m sure we’ll have opportunities to debate that again. On the underlying point, I’ve gotten a lot of email too. But we’re covered on this topic in the Corner generally anyway. Still, this guy clearly worked hard on this email and it’s got some interesting stuff, I figured it’s worth posting:

Dear Mr. Goldberg,

Your points in your article are well taken. You point out but another facet of the problems arising from unbridled judicial activism. As if the actions of the Massachusetts Supreme Court and those of the lower court judges in California and New York weren’t enough, in view of the recent United States Supreme Court’s decision in Roper v. Simmons, the issues of the Court’s role, a judges authority, and also the relevancy of Mark Levin’s book on the Supreme Court, Men in Black, all become painfully obvious. However, the legal basis, or really the legal philosophy underlying criticism of what really amounts to new levels of judicial activism (and the theoretical foundation of much of Justice Scalia’s dissent in Roper), had previously been clearly set forth by law Prof. Brian Z. Tamanaha (St. John’s University School of Law, NYC) in his recent book On The Rule of Law – History, Politics, Theory (Cambridge University Press). This is a somewhat overlooked important source document for these issues and I have recommended it to many.

Prof. Tamanaha cites no less than Cicero as emphasizing that it is the law that rules, not the individual who happens to be the magistrate: “As magistrates are subject to the laws, the people are subject to the magistrates. In fact it is true to say that a magistrate is a speaking law, and law a silent magistrate…” (page 11).

Montesquieu is quoted on his insistence that judgments be rendered strictly according to the law, not just the personal view of the judge: “Were they to be the private opinion of the judge, people would then live in a society, without exactly knowing the nature of their obligations…” (page 53).

The delicate balance of powers of our nation is preserved only by the judge’s adherence to the “rule of law.” Prof. Tamanaha explains that F.A. Hayek (Law, Legislation and Liberty, Univ. of Chicago Press, 1979) found that judges in applying the common law are not legislating, since they are merely making explicit what was already immanent within the existing law, so the separation of powers is not violated, and the decisions are not unpredictable – thus voicing the old Medieval view that “law is discovered, not made.” (pages 69-70).

Prof. Tamanaha is adamant in his conclusion that the law is what is supposed to decide cases, not the person who happens to be the judge: “Aristotle identified man with passion and law with reason; Locke contrasted rule by law with rule by the arbitrary will of another; Chief Justice Marshall denied that the will of judges influence the law. That is the point of the slogan: ‘the rule of law, not man’… ” (page 87). “…if judges are seated on the bench who have few qualms about exploiting the latent indeterminacy of law to favor personal or political objectives, the law is defenseless.” (page 90) “…to live under the rule of law is not to be subject to the unpredictable vagaries of other individuals – whether monarchs, judges, government officials or fellow citizens. It is to be shielded from the familiar human weaknesses of bias, passion, prejudice, error, ignorance, cupidity or whim…out of concern of the potential abuse that inheres in the power to rule.” (page 122). “The ultimate risk…[separation of powers discussion omitted]…is that the rule of law might become rule by judges.” (page 124).

I think he best summarizes his arguments when he states: “Rule by judges poses the specter of the usurpation of power by an unaccountable elite, treating political issues as if they were matters of law, hiding political decisions under the guise of purely legal interpretations.” (emphasis added, at page 125).

While I am not competent to comment on all the erudite legal and political history and positions outlined in this remarkably slim (only some 141 pages or so) volume, considering the depth of analysis contained therein, I do believe that this is the most succinct and correct interpretation of the “rule of law” and highly recommend it to any fair discussion of our current judicial predicament. I also believe it fully supports your position in the article. I recommend it to you as an important reference.I hope it helps.

Thank you for your time and consideration. I enjoyed your article immensely.

Sincerely,

[Name withheld]

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