by Tom G. K. Swift, American Thinker:
What distinguishes the rule of law from the rule of men is that the former contains limiting principles, which sharply and fundamentally limit the ability of men to decide the law as they see fit. Limiting principles are what remove arbitrariness and caprice from the law.
The recent spate of nationwide injunctions and Temporary Restraining Orders (TROs) by district court judges against President Trump are strikingly devoid of either structural or doctrinal limiting principles, such as separation of powers (or a conception of it having any real bite) and the political-questions doctrine — the former being, along with federalism, the most important structural limiting principle in American law. The judiciary ought to bend over backwards to respect limiting principles, notably those structural ones which are implied by our Constitution and our republican form of government — not least because the power of judicial review is less implied by the Constitution than are the basic limiting principles of our governmental system, which, to repeat, are forms of a principle that is fundamental to the very existence of the rule of law.
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The nationwide injunctions and TROs that have sprung recently from the brow of federal judges (who clearly enjoy being as imperious as Jove) are decidedly in conflict with the rule-of-law demand for limiting principles. What presidential action would these judges not see themselves fit to adjudicate, and indeed to proscribe as a matter of national policy?
However, the rogue judges didn’t come out of nowhere. I’m not referring to Soros-bucks and the like, but to something much deeper. This is that liberal jurisprudence itself, a.k.a. the “living Constitution,” is strikingly devoid of effective limiting principles.
As we consider this baleful fact about liberals and their ideas of judging, keep in mind that their side talks endlessly about their fealty to the rule of law. Rarely in our history has self-blindness reached such heights. Add self-righteousness to the mix, and the tragedy becomes a farce, with the audience lustily booing the comical unawareness of the rule-of-law-proclaiming actors on the stage.
The beating heart of today’s liberal jurisprudence is legal pragmatism. This is evinced by the subtitle of retired Supreme Court justice Stephen Breyer’s new book Reading the Constitution. The subtitle is Why I Choose Pragmatism, Not Textualism. Breyer doesn’t mention the living Constitution, of which he is a prominent exemplar, nor does he mention limiting principles. But he does talk about constitutional purposes and “workability.” Unfortunately, no limiting principles are apparent in his legal pragmatism of purposes and workability.
This shouldn’t be surprising. That which you think makes something workable — constitutionally or otherwise — depends on what your values are. Breyer does talk about values, but not very illuminatingly. People have widely different values in a pluralistic society. Therefore “workability” generally (not inevitably) amounts to “preferred liberal outcome” — since the only people who valorize pragmatism are liberals. (The prominent legal pragmatist Richard Posner isn’t a conservative but a libertarian, which is to say a quasi-liberal.)
Conservatives tend to think that pragmatism should be employed, if needed, under the auspices of, or in light of, textualism and originalism — as the handmaiden, if you will, of originalism and textualism. (A comely handmaiden it was, too, in the hands of Justice Antonin Scalia.) They just don’t valorize or reify pragmatism and its cousin, “purposivism.”
Specifically, conservatives think that legal pragmatism must be understood in terms of the Framers’ values. The proper interpretive dialectic, as conservatives see it, is that the Framers’ purposes must be understood in terms of their values, and their values must be understood in terms of their intentions and the Constitution’s text. Liberals like Breyer make much of purposes, as distinguished from intentions and text, but the two are not really separable in that way.
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