Religion & Law

I agree with my friend Rick that what judges (or other legal officials) should do is principally a function of their office, that is, of what the people have charged them with doing.  In the case of federal judges, this means, in part, figuring out what the Article III "judicial power" is.  Which is why, for example, Ronald Dworkin is wrong to talk about the judicial office without distinguishing between state and federal judges.  With respect to federal judges in particular, I'm persuaded by Jeff Powell's argument that the Framers were torn "between a global rejection of any and all methods of construction and a willingness to intepret the constitutional text in accordance with with the common law principles that had been used to construe statutes."  But even if Powell and I are wrong about the Framers' intent on this issue, there's another reason to favor an approach to legal texts that "textualism" seeks to rule out.  I'll make the point with one of my favorite examples.  The APA defines a "rule" as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy . . . ."  Commenting on this definition, then-professor Scalia said this: "Since every statement is of either general or particular applicability, and since everything an agency does is 'designed to implement, interpret, or prescribe law or policy, etc.' the only limiting (that is to say, defining) part of the definition of [a rule of law] is 'agency statement . . . of future effect.'  that is of course absurd.  It means, for example, that an EPA directive that a particular company must, in order to comply with existing law and regulations, install particular emission-control equipment at a particular factory is a rule rather than an order; that the proceeding looking to its issuance is a rulemaking rather than an adjudication . . . .  Such an analysis produces a categorization which is . . . contrary to the common understanding of what constitutes a rulemaking . . . ."  What to do about this absurdity and violation of the "common understanding?  According to then-professor Scalia: "It is generally acknowledged that the only responsible judicial attitude toward this central APA definition is one of benign disregard."  So, my position, in relevant part, is that while it is principally a question of positive law what judges can do (with respect to the Constitution, statutes, agency outputs, judicial decisions), the grant of judicial office should be construed, where possible, to favor the conditions that allow for law to be made and implemented.  To require judges to give effect to silly texts, such as the APA definition of a rule, would undermine the conditions for making law; implementing silliness is not making ordinances of reason for the common good.  Scalia's willingness to ignore the definition at the heart of our second-level Constitution, the APA, is a case in point; judges need a certain measure of flexibility that the wooden application of statutes would eviscerate.  I see the question of what access judges should have to the natural law as on a continuum with the question of what freedom judges should have to give intelligent, purposive interpretations to statutes, the Constitution, etc.  If my test seems a little flabby (to borrow an adjective that Justice Scalia has used to great effect), that's because I don't think the business of making law, as opposed to giving effect to the will of legislature, admits writ large of a more precise metric.  Needless to say, it's the voluntarism lurking behind "textualism" that I think needs to be slain if law is to be understood and treated, as it should be, as a thing of reason.

What say you, Rick?