Law is Politics

The legal system makes a lot more sense when you realize that it’s all politics.

There are those who insist that the law is absolute; that there is only one interpretation of it; and that only crazy radical liberals engage in “judicial activism.”

But the bottom line is that the law is whatever judges say it is.

Every judge has their own opinion as to what the “original intent” of the law was. If everyone agreed on what the “original intent” was, we wouldn’t need judges.

Even the Founders disagreed over the wording. The scales-personal-injury-lowConstitution was written to be specifically vague in parts because that was the only way they could get it passed.

You know — politics.

Within a few years of its passage, there were cases before the Supreme Court to interpret the Constitution’s meaning. The very Founders who wrote the damn thing argued before the Court as to how it should be interpreted.

Whenever anyone says there is only one “original intent” they always amazingly also know exactly what it is and — even more amazingly — it always matches what they already believed. (Sort of like religious nuts who are convinced there is only one interpretation of the Bible and it’s always the same thing as their own.)

And the meanings of words change over time. “Cruel and unusual punishment” does not mean the same thing in the 21st Century as it did in the 18th. The 14th amendment gives rights to “people” but at the time it was written, it did not include women or gays (and barely included blacks). Meanings change. Society changes.

Conservative judges interpret the Constitution just as much as liberal judges do — the difference is that liberal judges tend to be more honest about it. Or maybe the conservatives ones are just deluded, like Scalia was, that he had some great “insight” into the Founders’ desires, like he was an avatar to the gods. It was the conservative justices who reinterpreted the 2nd amendment to turn it into a personal right after 200 years. It was the conservative judges who decided that corporations were “people” and money was “speech.” And a new Court could turn around and say “nope” and change it back, using the exact same words in the Constitution.

Politics.

I know some people want the law to be like a science, where you can do an experiment or do some research and know the answer, but it isn’t. It’s politics. It’s written by politicians. It’s judged by people who are elected (and are therefore politicians) or who have been appointed by politicians. The judges don’t all agree, just like politicians don’t agree.

And most of them (if they aren’t deluded) will admit that the Constitution is not a religious document written by gods; it’s a political document written by a bunch of politicians.

 

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2 thoughts on “Law is Politics

  1. Very great observations on the nature of the judicial branch. I agree at the lowest levels, the benches are mostly occupied by those seeking to serve their local communities needs. Many do have vastly different interpretations of the law. Mainly because they come from vastly different experiences.

    Granted, it is an elected office and can become very politicized. Last election season, Luzerne County Pennsylvania had massive amounts of money from various political interests going behind two candidates running for one bench. And certainly the Pennsylvania Supreme Court has seen record amounts of money going into their races over the past fifteen years, causing the highest court in the commonwealth to be highly politicized—much the same as the Supreme Court of the United States (SCOTUS). 



    But, the SCOTUS has a long history of being politically charged. Arguably the base of the SCOTUS roots was specifically grown from politics. That would be the original landmark case of them all, Marbury v. Madison (1803). This would be the case that put the SCOTUS in their highest position of power.

    Following the possibly dirtiest of all presidential races in 1800, there was the “midnight appointments by outgoing President John Adams, and the lame duck congress made countless questionable appointments in the final two weeks of their respective terms. (A significantly big difference from the last ten months of a President’s term). The Federalists (Adam’s and the outgoing congressional majority’s party), sought to grab control of the third branch of government—the judicial branch.

    With this, the Federalists wished to even the score after the new House of Representatives elected, Thomas Jefferson the new president–after the 1800 election resulted in a tie between Jefferson and Burr. Since the elections in those days had the winner President and second place became vice president. It was a problem for the Federalists as Jefferson and Burr were “running mates”. In December of 1800 the chief justice, Oliver Ellsworth (another Federalist) resigned to allow Adams not Jefferson to name a replacement. Look at that—politics.

    John Marshall would be appointed, a second choice for Adams, but still a Federalist. Marshall was Adam’s secretary of state and remained in that post until January 1801. Some of the Federalists’ midnight appointments for justices of the peace for the District of Columbia, never received their commission from outgoing Secretary of State, Marshall. One of those forgotten was a man named, William Marbury. In 1801, a rejected Marbury found the new political majority would not grant him the commission. He immediately took the matter to the SCOTUS. The case was finally decided in 1803 with Chief Justice Marshall’s opinion. In a shocking moment for Federalists, Marshall did not side with Marbury. As he did not wish to be at odds with the president (Jefferson). Instead, Marshall was clever in siding with the new majority. It granted him more favor from the current majority in the legislative and executive branch. Yet, it also gave the judicial branch the leverage and power it had been lacking in America’s infancy. 

See, Justice Marshall was playing a game better known as—wait for it—POLITICS!!! Which is what is at the deepest parts of the judicial branch’s soil. The fruit of the judicial branch’s tree may be able to produce, apple sauce, for the “strict constructionist”. However, for those who have actually paid attention to history and the stare decisis over two centuries following Marbury v. Marshall. It is clear, that the judicial branch always has and always will be a political branch on the perennial plant of America. 



    The leaves will change colors and fall off. But new leaves will always come along and fill the branches again. Such is the same for our government. That is the true basis of our vague constitution. It is the people and who we elect, that are faced with the task of feeding and nurturing the tree our founders planted. It grows with time, and changes it’s shapes and colors. But the thing the tree will always be—is political.

    Liked by 1 person

    • Yes, this is a lecture I used to enjoy giving my Con Law students, with the lesson being that the Court sometimes makes decisions based on politics and not law. There are other examples, too, some of which ended up being the Court’s most terrible decisions (Korematsu and Bush v. Gore being the best examples).

      Like

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