Don't Knock the Isms 

Bill Stuntz has an essay today on Tech Central Station (via InstaPundit) on how the "right" is going down the wrong road when it comes to the judicial system.

Odds are, George W. Bush will soon appoint a new Chief Justice. More Supreme Court appointments will follow, along with hundreds of lower-court judges. The federal judiciary will soon be Bush Country, a fact that could have larger long-term effects than Social Security reform and the war in Iraq.

Unless something changes, the effects will be bad. Not because Bush's judges and Justices will be too conservative, but because they won't be conservative enough. Most conservative judges today believe in a theory that leads to very un-conservative results -- law that amounts to little more than judges' opinions, concentrated power in the hands of an allegedly all-knowing Supreme Court, and legal rules that reinforce the power of liberal interest groups like teachers' unions. The right has the wrong legal theory.

The theory boils down to three "isms": federalism, originalism, and formalism. The unifying theme behind this trinity is that all are things Earl Warren wasn't. Warren believed in broad Congressional power to regulate the economy and protect civil rights. Modern-day federalists believe in states' rights. Warren believed in a living Constitution that changes with the times. Originalists think the Constitution means exactly what James Madison thought it meant when he wrote it. Warren cared about the consequences of his decisions. Formalist judges follow legal forms and procedures and believe that worrying about consequences is a job for politicians.

Bill then goes on to explain exactly why those three "isms" are so awful. He makes a lot of excellent points, and I think the whole thing is worth a read. However, I think the best point he makes is the last one:

So what is the right legal theory? The key is two more buzzwords: deference and democracy. When there is a choice between deciding an issue in the courts and deciding it elsewhere, elsewhere is usually the right choice. Especially if the choice is between judges and elected legislators. Let judges read statutes aggressively if they wish -- if they get it wrong, legislatures can always slap them down. But when reading the Constitution, judges should have two mottoes: First, do no harm. And when in doubt, don't.

Isn't deference and democracy what those three "isms" are all about? Originalism, for instance, is really only bad when the Constitution never changes, or laws are never written. The problem comes in when judges interpret something in the constitution as it applies today, when no such interpretation can be made. How do you say apply the constitution to environmental law as it stands today? How do you say whether gay marriage can be banned with today's constitution? Sure you can try to apply the commerce clause, or you can say (rightly so in my opinion), that the federal government can't make law there, because it's not an enumerated power.

What Bill seems to be saying, is that the only way for the Constitution to evolve, is through a judge on the supreme court. Interestingly though, the framers thought about that:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

You can amend the constitution? We've actually done it... 27 times in fact. And the beauty of it, is that some guy who was given a life long appointment doesn't make the change. The legislature, elected by the people, and the states make the change. The people make the change. And isn't that the goal? So don't knock originalism, formalism, or even federalism. If this document seems lacking, then change it using the process that was provided... not by some decree from another Earl Warren.