Saturday, September 27, 2008

Cry, the Beloved Country

From time to time I come upon examples of Originalism, or the proper role of the Judiciary, in literature. Here’s a reasonably good one from Alan Paton’s Cry the Beloved Country:

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For to the Judge is entrusted a great duty, to judge and to pronounce sentence, even sentence of death. Because of their high office, Judges are called Honourable, and precede most other men on great occasions. And they are held in great honour by men both white and black. Because the land is a land of fear, a Judge must be without fear, so that justice may be done according to the law; therefore a judge must be incorruptible.
The judge does not make the Law. It is the People that make the Law. Therefore if a Law is unjust, and if the Judge judges according to the Law, that is justice, even if it is not just.
It is the duty of a Judge to do justice, but it is only the People that can be just. Therefore if justice be not just, that is not to be laid at the door of the Judge, but at the door of the People, which means at the door of the White People, for it is the White People that make the Law.
In South Africa men are proud of their Judges, because they believe they are incorruptible. Even the black men have faith in them, though they do not always have faith in the Law. In a land of fear, this incorruptibility is like a lamp set upon a stand, giving light to all that are in the house.

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Contrast these fine sentiments with those of today’s Democratic Presidential Nominee Barack Obama. When asked in a primary debate what kind of person he would nominate to the Supreme Court, Obama said the following:

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I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout. . . . [S]ometimes we're only looking at academics or people who've been in the [lower] court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.
…We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.

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Notice that Obama does not say anything about correctly interpreting the law. Rather, the implication is exactly the opposite; that the law is somehow mutable, so a judge’s empathy or experience or personal judgment must somehow be part of the equation.

The irony here is that Alan Paton was himself a liberal activist who was describing a process by which a poor, African young man was being judged by a rich, white judge of European descent. Paton’s first inclination was not to impugn the judge’s abilities as a juror because he did not have the “life experience… [to] understand what it means to be on the outside,…[to] not have the system work for them” Instead, it was to celebrate the judge’s actions for being faithful to the law, while any sense of injustice was laid directly at the feet of the people.

I feel compelled, once again, to offer my regular qualifier for Originalism before people start accusing me of baby-killing. Regardless of what happens in the judiciary, if injustice continues based on laws enacted by the people, then it is incumbent upon the people to remedy that fact! By stating that justices are arbiters of the law, not justice, I am not concluding that there shall be no justice in this world, I am only stipulating the proper role of the judiciary!

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