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By reminding readers that early Supreme Court justices refused to
reduce the Constitution to a mere legal document, Approaching the
U.S. Constitution provides a definitive response to Reading Law by
Antonin Scalia and Bryan Garner. Turning to the vision of Alexander
Hamilton found in Federalists No. 78, Hunter argues that rather
than seeing the judiciary as America's legal guardian, Hamilton
looked to independent individuals of integrity on the judiciary to
be the nation's collective conscience. For Hamilton, the
judiciary's authority over the legislature does not derive from
positive law but is extra-legal by 'design' and is purely moral. By
emphasizing the legal expertise of judges alone, individuals such
as Justice Scalia mistakenly demand that judges exercise no human
ethical judgment whatsoever. Yet the more this happens, the more
the "rule of law" is replaced by the rule of lawyers. Legal
sophistry becomes the primary currency wherewith society's ethical
and moral questions are resolved. Moreover, the alleged neutrality
of legal analysis is deceptive with its claims of judicial modesty.
It is not only undemocratic, it is dictatorial and highly elitist.
Public debate over questions of fairness is replaced by an
exclusive legalistic debate between lawyers over what is legal. The
more Scalia and Garner realize their agenda, the more all appeals
to what is moral will be effectively removed from political debate.
'Conservatives' lament the 'removing God from the classroom,' by
'liberals,' yet if the advocates of legalism get their way, God
will be effectively removed from the polis altogether. The answer
to preserving both separation of powers and the American commitment
to unalienable human rights is to view the Supreme Court in the
same way early founders such as Hamilton did and in the way
President Abraham Lincoln urged. The Court's most important
function in exercising the power of judicial review is to serve as
the nation's conscience just as it did in Brown v. Board of
Education.
By reminding readers that early Supreme Court justices refused to
reduce the Constitution to a mere legal document, Approaching the
U.S. Constitution provides a definitive response to Reading Law by
Antonin Scalia and Bryan Garner. Turning to the vision of Alexander
Hamilton found in Federalists No. 78, Hunter argues that rather
than seeing the judiciary as America's legal guardian, Hamilton
looked to independent individuals of integrity on the judiciary to
be the nation's collective conscience. For Hamilton, the
judiciary's authority over the legislature does not derive from
positive law but is extra-legal by 'design' and is purely moral. By
emphasizing the legal expertise of judges alone, individuals such
as Justice Scalia mistakenly demand that judges exercise no human
ethical judgment whatsoever. Yet the more this happens, the more
the "rule of law" is replaced by the rule of lawyers. Legal
sophistry becomes the primary currency wherewith society's ethical
and moral questions are resolved. Moreover, the alleged neutrality
of legal analysis is deceptive with its claims of judicial modesty.
It is not only undemocratic, it is dictatorial and highly elitist.
Public debate over questions of fairness is replaced by an
exclusive legalistic debate between lawyers over what is legal. The
more Scalia and Garner realize their agenda, the more all appeals
to what is moral will be effectively removed from political debate.
'Conservatives' lament the 'removing God from the classroom,' by
'liberals,' yet if the advocates of legalism get their way, God
will be effectively removed from the polis altogether. The answer
to preserving both separation of powers and the American commitment
to unalienable human rights is to view the Supreme Court in the
same way early founders such as Hamilton did and in the way
President Abraham Lincoln urged. The Court's most important
function in exercising the power of judicial review is to serve as
the nation's conscience just as it did in Brown v. Board of
Education.
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