Category: William J. Watkins

When Law and Politics Become One


Most Americans believe that politics and law are separate entities.  This was the position of Aristotle, who treated politics as a study in itself, and Hugo Grotius, the eminent Dutch scholar of the seventeenth century who developed the theory of international law.  Not all thinkers have been so careful to distinguish the two subjects.  For example, Jean Bodin, the sixteenth-century French philosopher who developed the first comprehensive doctrine of sovereignty, intermingled the two.  

Americans comfortably in the Aristotle-Grotius camp should think twice about tuning in to the hearings for Supreme Court nominee Brett Kavanaugh, which begin on September 4.  The hearings will have little to do with whether Kavanaugh is qualified to sit on the High Court.  He clearly is.  Kavanaugh is a Yale Law School graduate, clerked on two courts of appeals and the Supreme Court, served in the White House, and has been a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006.  

The hearings will be no great search for Kavanaugh’s judicial philosophy.  He’s already made that clear on the evening he received the nomination: “My judicial philosophy is straightforward.  A judge must be independent and must interpret the law, not make the law.  A judge must interpret statutes as written.  And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

What the hearings will be is political theater as leftist senators pepper Kavanaugh with questions in the hopes that he has a mental lapse so they can embarrass him and persuade their more moderate colleagues to vote against him.  

Why such gamesmanship?  It all goes back to Kavanaugh’s judicial philosophy.  The modern left does not want law and politics to be separate.  At one time, Democrats sought change through innovative legislative programs such as FDR’s New Deal.  Now they prefer to promote political and constitutional change through the courts.  They have learned to do this by drawing the wrong lessons from a historic Supreme Court case. 

In 1954, a unanimous Supreme Court rightly held in Brown v. Board of Education that “segregation of children in public schools solely on the basis of race” is against the law.  Brown was an extraordinary case that sought to tackle the inimitable evils of state-sponsored segregation. 

Unfortunately, the left does not view Brown in this context, but instead is inspired to seek a judicial remedy in the first instance rather than attempting to persuade fellow citizens of the merit of a particular cause.  In the words of Harvard’s Mary Ann Glendon, after Brown, progressives began to “imagine that wise judges in black robes could cure social ills.”  Professor Glendon notes that perhaps even more dangerously, Brown has motivated “many unwise judges down the line to begin to believe that they had the magic touch.”

Gerald Rosenberg, a professor at the University of Chicago School of Law, astutely complains that post-Brown, various causes were “hijacked by a group of elite, well-educated and comparatively wealthy lawyers who uncritically believed that rights trump politics and that successful arguing before judges is equivalent to building and sustaining political movements.”  Political movements build the democratic muscle of the citizenry, whereas litigation sends the message that “important” matters should he left to the elites.

The left seeks to excoriate Kavanaugh because he does not claim the “magic touch,” and he prefers that the people and their representatives address society’s ills.  In this manner, he is much like the late Antonin Scalia.  “This practice of constitutional revision by an unelected committee of nine,” Scalia wrote, “always accompanied … by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

For the last 60-plus years, the merger of law and politics has slowly killed the spirit of self-government.  Today, issues that were once decided in state and local assemblies are controlled by the judges.  The Supreme Court defines marriage, draws legislative districts, and micromanages state criminal law.  

With law and politics blended, control of the High Court is a greater prize than majorities in Congress or the occupancy of 1600 Pennsylvania Avenue, hence the left’s desperate measures to keep a qualified jurist off the Supreme Court.

Kavanaugh’s hearings will be a lesson on why law and politics should be separated and a reminder of just how much our country needs an infusion of Aristotelian wisdom.

William J. Watkins, Jr. is a research fellow at the Independent Institute and author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.

Most Americans believe that politics and law are separate entities.  This was the position of Aristotle, who treated politics as a study in itself, and Hugo Grotius, the eminent Dutch scholar of the seventeenth century who developed the theory of international law.  Not all thinkers have been so careful to distinguish the two subjects.  For example, Jean Bodin, the sixteenth-century French philosopher who developed the first comprehensive doctrine of sovereignty, intermingled the two.  

Americans comfortably in the Aristotle-Grotius camp should think twice about tuning in to the hearings for Supreme Court nominee Brett Kavanaugh, which begin on September 4.  The hearings will have little to do with whether Kavanaugh is qualified to sit on the High Court.  He clearly is.  Kavanaugh is a Yale Law School graduate, clerked on two courts of appeals and the Supreme Court, served in the White House, and has been a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006.  

The hearings will be no great search for Kavanaugh’s judicial philosophy.  He’s already made that clear on the evening he received the nomination: “My judicial philosophy is straightforward.  A judge must be independent and must interpret the law, not make the law.  A judge must interpret statutes as written.  And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

What the hearings will be is political theater as leftist senators pepper Kavanaugh with questions in the hopes that he has a mental lapse so they can embarrass him and persuade their more moderate colleagues to vote against him.  

Why such gamesmanship?  It all goes back to Kavanaugh’s judicial philosophy.  The modern left does not want law and politics to be separate.  At one time, Democrats sought change through innovative legislative programs such as FDR’s New Deal.  Now they prefer to promote political and constitutional change through the courts.  They have learned to do this by drawing the wrong lessons from a historic Supreme Court case. 

In 1954, a unanimous Supreme Court rightly held in Brown v. Board of Education that “segregation of children in public schools solely on the basis of race” is against the law.  Brown was an extraordinary case that sought to tackle the inimitable evils of state-sponsored segregation. 

Unfortunately, the left does not view Brown in this context, but instead is inspired to seek a judicial remedy in the first instance rather than attempting to persuade fellow citizens of the merit of a particular cause.  In the words of Harvard’s Mary Ann Glendon, after Brown, progressives began to “imagine that wise judges in black robes could cure social ills.”  Professor Glendon notes that perhaps even more dangerously, Brown has motivated “many unwise judges down the line to begin to believe that they had the magic touch.”

Gerald Rosenberg, a professor at the University of Chicago School of Law, astutely complains that post-Brown, various causes were “hijacked by a group of elite, well-educated and comparatively wealthy lawyers who uncritically believed that rights trump politics and that successful arguing before judges is equivalent to building and sustaining political movements.”  Political movements build the democratic muscle of the citizenry, whereas litigation sends the message that “important” matters should he left to the elites.

The left seeks to excoriate Kavanaugh because he does not claim the “magic touch,” and he prefers that the people and their representatives address society’s ills.  In this manner, he is much like the late Antonin Scalia.  “This practice of constitutional revision by an unelected committee of nine,” Scalia wrote, “always accompanied … by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

For the last 60-plus years, the merger of law and politics has slowly killed the spirit of self-government.  Today, issues that were once decided in state and local assemblies are controlled by the judges.  The Supreme Court defines marriage, draws legislative districts, and micromanages state criminal law.  

With law and politics blended, control of the High Court is a greater prize than majorities in Congress or the occupancy of 1600 Pennsylvania Avenue, hence the left’s desperate measures to keep a qualified jurist off the Supreme Court.

Kavanaugh’s hearings will be a lesson on why law and politics should be separated and a reminder of just how much our country needs an infusion of Aristotelian wisdom.

William J. Watkins, Jr. is a research fellow at the Independent Institute and author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.



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Jeremy Bentham and the Judges


February 15 marks the 270th birthday of the English philosopher and social reformer Jeremy Bentham.  Bentham is typically remembered for his formulation of the principle of utility: the greatest happiness of the greatest number as the measure of legislation.  He’s also known for instructing that his body be preserved as an “auto-icon” and the apocryphal story that the body is regularly brought out for board meetings at the University College London.

But in these days, when judges are de facto legislators, what we ought to remember Bentham for is his perspicacious warning about the danger of judicial power.  Judges in Bentham’s Great Britain were supposed to be limited by the principle of parliamentary sovereignty.  As the ultimate authority, Parliament had the uncontrollable ability to make, enlarge, or abrogate laws.  Courts had a role in interpreting parliamentary enactments and expounding the customary law of the realm, but they could not overturn an Act of Parliament as unconstitutional. 

Despite the constitutional limitations on the British judiciary, Bentham noticed a tendency in the judges to aggrandize their office through interpretative chicanery.  Parliament, the judges oft observed, would not knowingly enact any law contrary to reason; therefore, the judiciary had to construe statutes to ensure a reasonable result.  And what is reasonable?  “[F]or my part I will speak plainly,” Bentham declared, “and confess that with me to be most evidently contrary to reason, is to be most evidently contrary to my reason, i.e., to what I like.”  The same tendency, Bentham concluded, was true of the judges and was obvious in their rulings. 

Bentham saw a similar judicial legerdemain used in the exposition of the common law.  Under the pretense of merely declaring what was pre-existing customary law, the judges created new law and built upon judicial precedents to direct the law’s development to suit their own inclinations.  If they came across an earlier case that was incongruent with their policy preferences, the judges again turned to the inward reason of the law.  “The trick is,” Bentham wrote, “when [the judges] are satisfied that the thing is not Law, say it is not reason.”  This allows for long existing precedent to be overturned and replaced.

To counter the unbridled power of the judges, Bentham proposed that all laws be codified.  The citizen, Bentham believed, should be able to search and study the laws that applied to him rather than guess about what a judge believed was reasonable.  Moreover, Parliament was subject to regular election, and thus the people could exercise some influence and control over the lawmaking body of the realm via the franchise.  With the judiciary, the people had no avenue of remonstrance or control.

Modern American judges use many of the same tricks that Bentham inveighed against, but to a degree unimaginable in Bentham’s day.  For example, despite the U.S. Constitution specifically providing that government may take the life, liberty, or property of a convicted criminal if proper procedures are followed, many judges and academics insist that the death penalty is per se unconstitutional.  They argue that capital punishment is unreasonable and that established, written constitutional law evolves to suit the judges’ conception of a good society.

Similarly, the Supreme Court has ruled that constitutional safeguards requiring “due process of law” grant the courts the power to review the substance – that is, the reasonableness – of all legislation.  This has set the courts up as super-legislatures examining various federal and state statutes under a sliding scale of scrutiny.  Today, the courts evaluate the policy objectives of everything from marriage law to immigration regulations.  Enactments contrary to the judges’ personal opinions are declared unreasonable and struck from the code books.  This doctrine of “substantive due process” has worked a great unconstitutional shift of power away from the people and their representatives to the federal judiciary.

We would do well to remember Jeremy Bentham on his 270th birthday.  At the heart of Bentham’s criticisms were concerns about unelected and unaccountable officials making law for the people.  Bentham recognized that only those beholden to the people should be permitted to make law.  We too should seize on this principle as we seek to reform our constitutional order.

William J. Watkins, Jr. is a research fellow at the Independent Institute and author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution (2016, Independent Institute).

February 15 marks the 270th birthday of the English philosopher and social reformer Jeremy Bentham.  Bentham is typically remembered for his formulation of the principle of utility: the greatest happiness of the greatest number as the measure of legislation.  He’s also known for instructing that his body be preserved as an “auto-icon” and the apocryphal story that the body is regularly brought out for board meetings at the University College London.

But in these days, when judges are de facto legislators, what we ought to remember Bentham for is his perspicacious warning about the danger of judicial power.  Judges in Bentham’s Great Britain were supposed to be limited by the principle of parliamentary sovereignty.  As the ultimate authority, Parliament had the uncontrollable ability to make, enlarge, or abrogate laws.  Courts had a role in interpreting parliamentary enactments and expounding the customary law of the realm, but they could not overturn an Act of Parliament as unconstitutional. 

Despite the constitutional limitations on the British judiciary, Bentham noticed a tendency in the judges to aggrandize their office through interpretative chicanery.  Parliament, the judges oft observed, would not knowingly enact any law contrary to reason; therefore, the judiciary had to construe statutes to ensure a reasonable result.  And what is reasonable?  “[F]or my part I will speak plainly,” Bentham declared, “and confess that with me to be most evidently contrary to reason, is to be most evidently contrary to my reason, i.e., to what I like.”  The same tendency, Bentham concluded, was true of the judges and was obvious in their rulings. 

Bentham saw a similar judicial legerdemain used in the exposition of the common law.  Under the pretense of merely declaring what was pre-existing customary law, the judges created new law and built upon judicial precedents to direct the law’s development to suit their own inclinations.  If they came across an earlier case that was incongruent with their policy preferences, the judges again turned to the inward reason of the law.  “The trick is,” Bentham wrote, “when [the judges] are satisfied that the thing is not Law, say it is not reason.”  This allows for long existing precedent to be overturned and replaced.

To counter the unbridled power of the judges, Bentham proposed that all laws be codified.  The citizen, Bentham believed, should be able to search and study the laws that applied to him rather than guess about what a judge believed was reasonable.  Moreover, Parliament was subject to regular election, and thus the people could exercise some influence and control over the lawmaking body of the realm via the franchise.  With the judiciary, the people had no avenue of remonstrance or control.

Modern American judges use many of the same tricks that Bentham inveighed against, but to a degree unimaginable in Bentham’s day.  For example, despite the U.S. Constitution specifically providing that government may take the life, liberty, or property of a convicted criminal if proper procedures are followed, many judges and academics insist that the death penalty is per se unconstitutional.  They argue that capital punishment is unreasonable and that established, written constitutional law evolves to suit the judges’ conception of a good society.

Similarly, the Supreme Court has ruled that constitutional safeguards requiring “due process of law” grant the courts the power to review the substance – that is, the reasonableness – of all legislation.  This has set the courts up as super-legislatures examining various federal and state statutes under a sliding scale of scrutiny.  Today, the courts evaluate the policy objectives of everything from marriage law to immigration regulations.  Enactments contrary to the judges’ personal opinions are declared unreasonable and struck from the code books.  This doctrine of “substantive due process” has worked a great unconstitutional shift of power away from the people and their representatives to the federal judiciary.

We would do well to remember Jeremy Bentham on his 270th birthday.  At the heart of Bentham’s criticisms were concerns about unelected and unaccountable officials making law for the people.  Bentham recognized that only those beholden to the people should be permitted to make law.  We too should seize on this principle as we seek to reform our constitutional order.

William J. Watkins, Jr. is a research fellow at the Independent Institute and author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution (2016, Independent Institute).



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