Wednesday, July 27, 2005

Roberts' memos

The NYT has an article on the memos Judge Roberts wrote while at the justice department. The article emphasizes Roberts' belief in "judicial restraint", but the phrase is ambiguous.

Sometimes it is a warning against finding rights for individuals in the constitution that aren't there, thus increasing the power of government to control individuals. Thus Roberts finds that there is no "right to travel between states" in discussing residency restrictions on welfare. This version of "judicial restraint" is no doubt responsible for his comment about the "the unprincipled jurisprudence of Roe v. Wade."

On the other hand, sometimes "judicial restraint" is a warning against finding powers for the government that aren't there, thus increasing the power of individuals (at least some individuals) to resist government. Thus he says that title IX does not give the government the right to set overall priorities in school's budgets.

The simple fact is "judicial restraint" is not a coherent category. Judicial restraint implies that you should simply view the constitution as not saying things beyond what it apparently says or has traditionally been viewed as saying. But this enforced silence on the constitution changes meaning depending on what you are claiming the constitution is silent about. Is it reading into the constitution to say that the government has the ability to manage universities budgets, or is it reading into the constitution to say that universities have the right to manage their own budgets?

The general pattern in Roberts vision of "judicial restraint" is to side with the individual when the individual is a wealthy person or large corporation, but to say one is "reading rights into the constitution" when the rights are most relevant to the poor and politically weak.

The real test will be the Endangered Species Act. The right is going to ask that the new court declare the Endangered Species Act unconstitutional. So, at the same time that they want to invalidate Roe because it was "legislating from the bench", they will be engaging their own version of legislating from the bench. This is because they think the expansion of personal rights is obviously reading into the constitution, where as the expansion of property rights is obviously not.

I know work is done in the philosophy of interpretation comparing the incoherence strict constructionism about the constitution with the incoherence of Biblical fundamentalism. I should look into that.

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