Only two weeks into law school, my understanding of the way the Left views and approaches law has changed dramatically. It’s incredibly easy to strawman the Left by saying that they hate the Constitution or that they think judges should rule based on what they wish the law said rather than what it actually says, but that’s not quite true; they really do have a judicial philosophy and a fairly consistent rubric for judicial interpretation — one that I find unconvincing, but nonetheless a system based in more than reactionary grandstanding.
Perhaps, at times, the results are the same. Maybe the progressive approach still leads to what the Right would consider judicial activism and full-on defiance of the Constitution, but that’s not how the Left would characterize it, and their intent matters — primarily because it doesn’t do us any good to flippantly vilify the other side. If we ever hope to convert our liberal friends to conservative thought, we have to treat them as the sincere, good-intentioned people that they likely are and that you hope they will treat you as. “Owning the libs” is not convincing the libs, and to do that, first we have to understand the libs.
Certainly there are many people in this country who do wish to upend the Constitution and the whole of Western Civilization, but that is not nearly a majority of the people you and I know who happen to be Democrats and who agree with Obergefell or Roe v. Wade.
And it’s counterproductive to lump them all together, especially when you want to have a reasoned conversation. If you want to convert your Muslim friend to Christianity, you can’t talk to him like he’s an Orthodox Jew. Your argument must be different; your language must be tailored to their understanding. But if you don’t understand their understanding, then you’re up the creek.
In general, it’s not that liberals hate the Constitution or don’t care about the law. They just have a different approach to what the law should be, what constitutes law, and how that law should be interpreted. And if you listen to them, they’ll tell you what that approach is, just as my professors and classmates have been doing all week.
So to help you understand — not debate yet, just understand — your liberal friends, here are three critical viewpoints they espouse that you need to understand about what the law should be, what constitutes law, and how that law should be interpreted:
1. Laws should be progressive
It’s no secret that the Left favors change. After all, we live in a changing world, and our society ought to reflect that — not only in our cultural mannerisms but codified in our law.
This idea makes sense if viewed through the liberal lens, which boils down to a difference in the Left and Right’s perception of the purpose of government. To the Right, government exists “to secure [unalienable] rights.” Thus, the Right not only pursues minimal laws and minimal government, but only such laws as protect our natural rights to life, liberty, and beyond. To the Left, however, the role of government is to build a better society, as sculpted by its citizens. Therefore, when society achieves a certain victory, as the Left sees it, such as the acceptance of gay marriage culturally, then it’s only natural that gay marriage should be enshrined legally, almost like a checkpoint in a video game or a block behind a tire to ensure that we never forfeit the ground we’ve won.
Like I said, this view is perfectly legitimate to those who believe in the Utopian role of government; starting from that premise, the conclusion is logical. Those of us on the Right simply disagree with the premise (for reasons I won’t get into here).
Practically, this explains the Left’s approach to the Constitution. It’s not that they hate it and want to overturn it. They just want to move past it. It’s old and it’s served its purpose, but there are a great many pieces of it which we no longer need, and thus we should get rid of them in the name of our enlightened society.
The Right believes in free speech because it’s an unalienable right, intrinsic to each person; the Left believes in free speech because it’s beneficial to a progressive society. By contrast, the Right believes in the right to bear arms because it’s an unalienable right; the Left doesn’t believe in the right to bear arms because guns have outlived their purpose in a progressive society. Therefore, they want to repeal the Second Amendment. It’s not that they hate the Constitution — they just believe that certain portions are outdated, unnecessary, and detrimental to their Utopian ideal.
Old laws are inherently linked to old evils. Therefore, new laws need to correct those evils. And if the laws that oppose evil also contradict the Constitution, then that must mean that portion of the Constitution is either evil or at least not worth upholding. Of course, they can’t always get around the Constitution, so they have to redefine it — but more on that in point #3. The rubric for a good law, then, is not whether it’s constitutional, but whether it’s progressive.
2. Judges can (and should) make law
To us literalist curmudgeons sometimes known as conservatives, constitutionalists, or some other such class of bigots, “legislation” is a fancy word for “law.” Thus, when the Constitution explicitly says in its very first line of body text, “All legislative Powers herein granted shall be vested in a Congress of the United States,” conservatives understand that to mean that only Congress shall have power to make laws.
But to the enlightened Left, “legislation” does not mean “law,” it means “statute,” and a statute is only one kind of law. The president, for instance, can make regulations, which are also laws. Thus, the president creates law (see “DACA”). To a conservative, an executive regulation is simply a directive in how to enforce the law, but to a liberal, a regulation is a law. I know this because it’s been taught to me well over two dozen times in the last week at an acclaimed law school by “objective” professors.
Furthermore, the judiciary can make case law, which is not, as conservatives might say, merely an interpretation of law, but a law in and of itself. This is, of course, also known as precedent, which is considered binding in all lower courts within a certain jurisdiction and to future courts of the same level (except when it’s “bad” precedent, meaning they don’t like it, and even my professors have admitted that there is absolutely no objective criteria for establishing this). Case law then lends to common law, which is essentially a collection of case law, a tradition of interpretation that is so ingrained in our legal system that it persists through the years as the status quo of law. Common law is also referred to as judge-made law (a paradox to conservatives), and it has roots in the British legal structure.
Never mind that our country was founded repelling and rejecting British government, or that we have our own Constitution that defines the structures of this new, “more perfect Union.” Never mind that, as the late Justice Scalia pointed out in his dissenting opinion in Hamdi v. Rumsfeld, “The writ of habeas corpus was preserved in the Constitution—the only common-law writ to be explicitly mentioned,” meaning that all other writs of British common law were specifically excluded from our Constitution (under the canon of expressio unius).
At some point, generations ago, I’m sure that this idea of judge-made law and executive law was pushed in legal circles as a means of undercutting the Constitution and Congress. But now, it’s simply taught as a matter of fact, so I don’t begrudge liberals for believing it. In law school, we’re told that primary sources of law are the Constitution, statutes, regulations, and case law/common law. Secondary sources include commentaries on primary sources. This means that law students are actively being taught, in perhaps not as many words, that literally any Supreme Court decision in good standing is more vital to interpreting law than the Federalist Papers, the speeches of James Wilson, and the transcript of the Constitutional Convention.
Again, this makes perfect sense, but only if you accept the premise that the judiciary has the authority to create laws, which power the Constitution does not grant. But when teaching what are supposed to be basic facts, no constitutional appeal is apparently necessary. No professor says, “Judges can make law because x, y, or z.” They just say matter-of-factly that judges can make law, and that’s that. Those who don’t know any better have no reason to be suspicious.
I should note that at the very least, legal academics recognize that statutes carry more weight than common law, so judges can only make law in three circumstances: first, when the law is unclear, judges can fill it in with new law, such as was the plurality’s contention in the aforementioned Hamdi case. This is also how you can get this soundbite from Justice Kagan, a renowned left-leaning judge, that “whatever the wisdom or folly of [the statute in question], this Court does not get to rewrite the law. … If judges disagree with Congress’s choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.” In this case, she felt the law was clear (and I agree), so she rightly said that she couldn’t impose her will. But when the law is less defined, she has shown repeatedly that she is willing to fill in the gaps.
Second, the court can rewrite law by declaring statutes unconstitutional — another power not granted by the Constitution, but given to the judiciary by itself in Marbury v. Madison. I once gave myself the power to be the winner of every debate I ever have, which for some reason doesn’t seem to be as readily accepted as the Court’s assertion that it can give itself a constitutional check that the Constitution failed to provide, but I digress.
Third and finally, judges can make law in order to accomplish the purpose of existing law, even if that contradicts what existing law explicitly says, which leads us to the last liberal philosophy of law.
3. In judicial interpretation, purpose is king
There are three general forms of interpretation: textualism (what does the text say?), intentionalism (what was the intent of the framers of this law?), and purposivism (what was the purpose for which this law was created?).
Every constitutionalist is a textualist, usually with a mild intentionalist streak. Contrarily, just about every liberal is a purposivist. For instance, the Fifth Amendment guarantees that you will not be deprived of life, liberty, or property without due process of law. A textualist interprets that to mean that if the government intends to imprison you, there must be a thorough procedure which justifies that deprivation of liberty. An intentionalist would recognize that the “liberty” referred to is those freedoms enshrined in the Bill of Rights. But a purposivist declares that the purpose of the Due Process Clause is to protect any and all of your rights, including ones never acknowledged by or intended to be protected by the Constitution, and that some rights are so invaluable that no amount of process will justify depriving you of them. And just like that, Roe v. Wade is decided.
Additionally, a purposivist would insist, the purpose of the Fourteenth Amendment was to ensure that the law not discriminate based on any class of people, therefore gay marriage is constitutionally mandated and all sex-based discrimination is not allowed — which is not what the amendment says nor what was intended by it, but the Left conflates the purpose of a law (as they see it) with what the law actually says, means, and does.
And you don’t have to take my word for it. Here’s Justice Breyer saying the same thing:
I think most judges — appellate judges in particular — when they face a difficult question of statutory or constitutional interpretation, I think they normally start with six tools: they have the text, they can look to the history (how do those words get there), they can look to the tradition (how those words have come to be used before and after), precedent, the purpose of the statute (the statutory phrase in question), and the consequences. … I think we all have those six tools: text, history, tradition, precedent, purpose, and consequence. But I think some of us [signals to Justice Scalia] emphasize the first four and try to avoid the last two, and they think that in doing that, it’s less likely that you’ll get subjective. I don’t think that. I think you have to emphasize, in many of these cases, the last two: purpose and consequence.
So when a liberal judge dislikes a law, they can disregard it. But only if they can manipulate the purpose of the law to reflect their purpose, and only if they can justify it with a reimagining of the Constitution. Like I showed with abortion and gay marriage, the Court could only get away with those decisions by basing them in a purposivist approach to the Constitution. They can’t just say, “This is what the law should be,” so they say, “This is what the law was supposed to be.”
This is why the Left spends so much energy insisting that things like healthcare are rights, because once they are, you can’t take them away without due process. The only way to move past the Constitution is to move through it, and the only way to do that is through purposivism and judge-made law.
The only way to debate the Left is to understand their mentality. It all starts with their view of the purpose of government (to create the ideal society) and how they can use the law to get there. A vast majority of liberals don’t hate the Constitution as a whole — they just think that parts of it aren’t progressive enough, and they want to fix it. Now you know how, so now you can stop it.