Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

17
What Am I, a Potted Plant? The Case against Strict Constructionism

RICHARD A. POSNER Judge, United States Court of Appeals, Seventh Circuit

Many people, not all of conservative bent, believe that modern American courts are too aggressive, too "activist," too prone to substitute their own policy preferences for those of the elected branches of government. This may well be true. But some who complain of judicial activism espouse a view of law that is too narrow. And a good cause will not hallow a bad argument.

This point of view often is called "strict constructionism." A more precise term would be "legal formalism." [On this view, issues] of the "public good" can "be decided legitimately only with the consent of the governed." Judges have no legitimate say about these issues. Their business is to address issues of private rights, that is, "to decide whether the right exists--in the Constitution or in a statute--and, if so, what it is; but at that point inquiry ceases." The judge may not use "discretion and the weighing of consequences" to arrive at his decisions and he may not create new rights. The Constitution is a source of rights, but only to the extent that it embodies "fundamental and clearly articulated principles of government." There must be no judicial creativity or "policy-making."

In short, there is a political sphere, where the people rule, and there is a domain of fixed rights, administered but not created or altered by judges. The first is the sphere of discretion, the second of application. Legislators make the law; judges find and apply it.

There has never been a time when the courts of the United States, state or federal, behaved consistently in accordance with this idea. Nor could they, for reasons rooted in the nature of law and legal institutions, in the limitations of human knowledge, and in the character of a political system.

"Questions about the public good" and "questions about private rights" are inseparable. The private right is conferred in order to promote the public good. So in deciding how broadly the right shall be interpreted,

-182-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
Judges on Judging: Views from the Bench
Table of contents

Table of contents

Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
/ 364

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.