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Strict Construction or Legal Creativity?
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14171 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
1 / 1988 |
5,704 Words |
| Author
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Morton A. Kaplan
Editor and Publisher |
Judge Richard A. Posner has recently written a powerful critique of Walter Berns' contention that the judiciary ought to use the principle of strict construction in interpreting the Constitution. According to Berns, Judge Posner says, issues of the public good can be decided only with the consent of the governed. Judges are to consider only issues of private right, and even then only the question of whether such rights exist in the Constitution or the law. They may not use discretion or weigh consequences in reaching their decisions.
If Berns truly says this, then clearly he is wrong. Contrary to what Berns says, Posner argues that judges should use evidence creatively in reaching their decisions. Berns' position then is merely a rehash of the view that law is a conceptual system in which cases can be decided by logical deduction. Some jurists have gone so far as to argue that it is always possible to find the single true meaning of a legal provision. Morris Cohen attacked those positions as early as 1912, although his arguments did not receive general acceptance until the 1920s.
There is no doubt that judges do make law--at least in the interstices of the legal system as Justice Holmes stated--and that in many cases they cannot avoid doing so. The general rules embodied in law rarely fit cases exactly. And sometimes more than one rule is applicable. The interwar German jurist Hans Kelsen, who believed it was possible to construct laws for every human contingency, ultimately conceded this point. Kelsen assumed that judges would fill the gap between written law and unexpected circumstances. Moreover, many of the terms used in the debate over legal reasoning are inadequate without structured analysis. Strict construction and original intention are reasonable maxims if we have adequate accounts of how to employ them. But they cannot be determined without interpretation, particularly when the conditions in which they were originally applied have changed. However, that there may be a legitimate range of disagreement over what these concepts mean does not imply that any interpretation given to them is legitimate.
Precedent is a much abused concept. If precedent were rigidly followed, Brown v. Board of Education, the landmark 1954 decision reversing the "separate but equal" doctrine upheld in Plessy v. Ferguson, would not have been possible. The criteria that determine the use of precedent must be distinguished before the concept has adequate meaning. Activism is also a concept that requires adequate formulation. If it cannot be avoided, neither should it become a substitute for legal reasoning and fidelity to constitutional
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