Judicial Philosophy, Part 1

 

Preamble

Sitting members and nominees to the Supreme Court often identify themselves by a particular judicial philosophy concerning their interpretation of the Constitution or have some such label applied to them by observers. One purpose of labels is to serve as a code word to simplify the general approach that judge will use when applying the Constitution. Another use is to obscure intent, particularly when it allows the judge and her supporters to avoid answering difficult questions during the nomination process. With the enablement of the party controlling the Senate, such avoidance is practiced by nominees from both Democratic and Republican presidents.

In my opinion, these labels serve little practical purpose except to alert a political base, nevertheless I will list six judicial philosophies, a perfect number that pleases me, for discussion. What are the most common of these judicial labels, and what philosophies and opposition do they suggest?

First a disclaimer, (caveat). I am neither a lawyer nor a judge nor a scholar of the law. My training is in mathematics, and it is through the lens of my training and prejudices that I view these judicial philosophies.

On the one hand, the first classification defining opposing views of the Constitution is Judicial Activism versus Judicial Restraint. The former is often associated with liberals the latter with conservatives. The liberal Warren court is usually considered activist because it often went beyond just deciding whether a law was consistent with the Constitution and offered new interpretations of rights, and the conservative Rehnquist court decisions generally showed Judicial Restraint.

For me there is some confusion here because one view of Activism is the judicial ability to set aside government acts, while Restraint suggests that such acts should not be struck down but rather left to politics. Another view is that Activism should go beyond the constitution and consider the broader implications on society while Restraint tends toward a strict interpretation of only what’s in the constitution (see next paragraph). However, judges, like most humans, are often difficult to label. Therefore, the Activism/Restraint scale is unlikely to be binary, but since decisions must be rendered, it is by necessity discrete.

On the other hand, Activism, for me, is also connected with the Warren court’s practice of Loose Constructionism, wherein the court read the Constitution broadly and did not limit itself to what is explicitly stated. On the other hand, the Rehnquist court practiced Strict Constructionism, wherein the court philosophy was that the court should not reinterpret the Constitution, although I am unconvinced that this is exactly what they meant because “not reinterpret” suggests a strong reliance on precedent.

That brings us to the third hand. The philosophy that the Constitution is a Living Document that must adapt and expand to cover new situations (Warren) versus the Original Intent of the framers of the Constitution (Rehnquist). The current nominee to the Supreme Court has labeled her approach as Original Intent.

Now, I have problems with all these judicial labels, and also the labels liberal and conservative. To explain why, I’ll begin with the Constitution.

The framers of the Constitution were well educated, and most, in my opinion, were acquainted with the work of Euclid of Alexandria and his approach to geometry. Euclid did not invent geometry, but he did produce a written formalization of the organization of geometry into the prototype example of a logical structure. The document, Euclid’s Elements expressed in thirteen books, was not perfect. Neither was the structure, but it set the standard for consistency in an organized structure. The principles of that structure still influence rational thinking in building scientific knowledge.

I have little doubt that the framers of the United States Constitution were very aware of rational structures exemplified by Euclid in his Elements. What do I base this on?

The logical structure laid out by Euclid had numerous features compatible with Aristotelian logic. First among this is to begin with definitions and postulates (axioms). Euclid was not always good at definitions. Defining a point as that which has no part thereof, doesn’t give much insight into a point, but because we are limited to a finite number of words, and the definition of a word requires that it be expressed using other words, then some words must be primitive, undefined words which can only be indicated by numerous examples. For example, The 1989 Oxford dictionary lists the word “set” as having 430 different use senses and the definition listing is the longest at 60,000 words. Yet in mathematics, “set” is not given a proper definition, rather it is a primitive word whose meaning is implied through attributes, synonyms, and examples.

Similarly, justifying a claim by offering a more basic reason or rule becomes exhausting if each more basic reason in turn requires justification. Hence, there must be a starting place of basic rules and reasons. These are the assumptions, postulates, or axioms of mathematics adopted by those who wish to study the subject. These are the declarations of organizations and operations in the Constitution of the United States adopted by those who wish to live in a country ruled by law.

In order to avoid conflicting postulates, a mathematician’s goal is to get by with simply stated, clear postulates and as few postulates as possible. More than 2000 years ago, Euclid managed to assemble thirteen books about geometry based on 5 (or maybe 6) postulates or assumptions. In the nineteenth century, Giuseppe Peano proposed only 9 postulates from which the remaining properties of the counting numbers followed. Brevity in the number of assumptions is a desirable quality in any logical structure because it lessens the chance of inconsistent or contradictory rules.

The Constitution of the United States is the oldest and shortest constitution still in use in the world today. IMHO, the brevity of that constitution was not a matter of laziness, but an original intent to emulate the logical structure of Euclidean geometry.

Of course, geometry is not the real world, it is an idealized model useful in approximating the physical world. Does that mean that the Constitution and its consequences also do not represent the political/social world? Is justice then an ideal modeled by the Constitution but a crude approximation of reality?

In mathematics, theorems are the consequences of definitions and postulates. Showing that a conclusion from a hypothesis is consistent with the definitions, postulates and prior theorems is called a proof. In physics, a hypothesis is used in a slightly different way, and must first be consistent with previous theory, and the proof is experimental verification of the consequence. If the proof fails, then the physicist is faced with an existential problem in some part of the hypothesis including the postulates that sometimes requires a radical restructuring. More on that in another post.

In government, the consequences of definitions and the rules of the Constitution are also called laws, but sometimes it is not clear whether a new law is consistent with the Constitution or previous laws. Because Congress often formulates laws without the details of implementations, the executive branch of government must sometimes formulate detailed rules or regulations to implement the new laws. These regulations may become the subject of a consistency challenge or even a Constitutional challenge.

Is the job of the Supreme Court, like that of a strict constructionist mathematician, to ascertain whether a law is consistent with previous definitions and the constitution and previous case law (precedents?), or is it like the activist physicist, who must examine empirical evidence and search for flaws to correct?

Therein lies the first difficulty. The constitution is short, consisting of definitions and constitutional law postulates (operational rules), but it is not as short as the postulates of Euclid nor those of Peano. Yet both of these latter logical structures have fallen victim to flaws. If something as simple and as useful and as long studied as geometry and natural numbers have an inherent flaw, how can we expect anything as complex as the definitions and laws that set up our government to be flawless?

At a primitive level, there can be broad disagreement about definitions such as for “life”, “liberty”, or the “pursuit of happiness.” Moreover, the preamble is not a law (no one would agree on what those words mean anyway), but a preamble is an attempt to clarify what follows, that is, give original intent.

This completes the preamble to my discussion of Judicial Philosophy. In Part 2, I tackle Original Intent sometimes known as Originalism.