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Originalist Scholarship Relying on the Language of the Law–Part II

In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.

Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law.  The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate.   But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law.  For instance, she argues that warrantless entry into homes except in pursuit of a fleeing felon was a paradigm example of a search against the reason of the common law and is therefore prohibited. Under this view, the Fourth Amendment is not a provision of magnificent, but indeterminate generality, but a relatively precise catalog of prohibitions on government action.

Other recent scholarship has suggested the language of the law is essential to deciding who can hold the highest office in the land.   The Natural Born Citizen Clause provides” no person, but a natural born Citizen . . . shall be eligible for the Office of President.”  It is not clear that the term “natural born Citizen” would even register in ordinary language. But if it could be read in ordinary language it would appear to require that only those born in United States territory were eligible for the Presidency. Under English law, however, a person born outside of the country could still be a natural born subject if they were classified as a subject under the laws at the time of their birth.  Thus,  Michael Ramsey argues a natural born citizen is a person who was a citizen under the laws at the time of his birth.   This recent scholarship has once again treated a constitutional provision as written in the language of the law and found its meaning in legal history.

The language of the law is also at the heart of reevaluating the meaning of the Necessary and Proper Clause. While an ordinary reading of the Clause may make it seem vague, a recent book argues that its concepts have clear foundations in eighteenth century Anglo-American law. One of the authors uses fiduciary law to conclude that the incidental powers authorized by the Clause had to be less than the principal powers specifically authorized by the Constitution. Another interesting conclusion from this analysis is that the meaning of the Clause requires that this power be used impartially and thus that the original Constitution applied some form of an equality principle to the federal government . Whatever the validity of this interpretation, it would be impossible to make it from the ordinary meaning of the words.

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on August 03, 2017 at 06:30:40 am

If the delegates who voted on ratification at the state conventions were unaware of the original legal meaning of the text of the Constitution, does this take away from the notion that the Constitution was endorsed by popular consent? It would be akin to a party to a contract who agreed to language that was sufficiently opaque such that he could not understand the meaning of the text. If the text could be taken to mean what the party thought it to mean, and the true, original meaning of the contract could only be deciphered by careful examination or legal training, how enforceable is that contract?

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Brayden Smith
on August 03, 2017 at 09:42:15 am

it is not obvious that most delegates were unaware of these legal meanings, because they were often a more elite group than the public in general, as were the Framers of the Constitution, a large majority of whom were lawyers. In any event, a document written in the language of the law can be understood in general terms by someone who knows only ordinary English. It will most often be the details of the provisions that will differ, with the language of the law providing a specific meaning to a concept that is more indeterminate in ordinary language. Your example of a contract is actually on point. Parties are bound to a contract even if their lawyers write it and the parties do not understand the details of all terms.

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John O. McGinnis
on August 03, 2017 at 10:23:36 am

McGinnis and Rappaport are quite correct here. One need not know / understand all the details of a contract / agreement to be bound by it, the notion of a deferral to the understanding of the non-drafting party (previously asserted by some) notwithstanding.

It is also important to remember that these men who "ratified" the document, also vigorously debated the document and its text, meanings and implications. One can infer that from this exercise arose a fair understanding of the terms of the contract. Indeed, it must also be pointed out that the opponents of the document also had a rather clear understanding of the text / implications and in many cases were *more* astute than the Federalists. From this can we not conclude that the ratifiers had a clear understanding of the terms and thus were capable of giving "consent."

Recall, also, that a series of *robust* public debates / meetings (some replete with strong ales) were conducted throughout many regions of the country and this provided the *common* man an opportunity to hear the "language of the law" explained in the common idiom to the citizenry. Thus, one can also claim that "consent" was provided by the common people.

But more than this, what the authors provide us with is a (relatively) simple, or at least, non-complex, means of determining textual meaning -i.e., legal meaning while providing a medium by which and through which we may interpret the text and its historical meanings / usage / practices.

And all this, without seeking the comfort of the "sweet mysteries of life" as one former Black Robe had advised us!

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gabe
on August 03, 2017 at 10:28:00 am

[I]t is not obvious that most delegates were unaware of these legal meanings, because they were often a more elite group than the public in general, as were the Framers of the Constitution, a large majority of whom were lawyers.

It is not obvious that they were unaware. But it is likewise not obvious that they were.

The McGinnis/Rappaport thesis, as I understand it, is that (1) the drafters wrote in legal jargon, not common English, and (2) we should therefore interpret the Constitution in a manner consistent with the intent of the drafters whether or not the ratifiers shared this understanding. It’s the argument that the Constitution, much like the Bible, is really not understandable to the layman; he shouldn’t even read it, as it will only confuse and mislead him.

In support of this thesis, McGinnis has been offering able arguments defending the first proposition. But Bryden Smith and I question the second proposition.

[A] document written in the language of the law can be understood in general terms by someone who knows only ordinary English.

This begs the question: If the Constitution “can be understood in general terms by someone who knows only ordinary English,” then why privilege legal jargon over this “ordinary English” usage? Why privilege the (postulated) understanding of the drafters over the (postulated) understanding of the ratifiers?

Your example of a contract is actually on point. Parties are bound to a contract even if their lawyers write it and the parties do not understand the details of all terms.

This is a clever retort: As I previously argued, under contract law an ambiguous document would be construed against the drafter. But in the case of the Constitution, who was the drafter? Each state had delegates to the Constitutional Convention in Philadelphia, and all but Rhode Island approved of it. So arguably the states themselves (via their representatives) were the drafters. Thus, if they relied to their detriment on the plain meaning of the language rather than on knowledge of legal jargon, they have no one to blame but themselves.

This argument strikes me as legally sufficient, if not exactly heartwarming. I don’t like contemplating that the ratifiers may have been duped into adopting the Constitution. I’ll have to think about this one….

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nobody.really
on August 03, 2017 at 11:53:36 am

nobody:

1) See my 10:23 comment which was written before your current post.

2) "Thus, if they relied to their detriment on the plain meaning of the language rather than on knowledge of legal jargon, they have no one to blame but themselves. "

Now this IS interesting and I was preparing to comment on this very issue but from a different perspective.

Agreed! There is, and it is probably inescapable that there will be, some confusion when one mixes the common language with the more arcane language of the law. McGinnis, Rappaport and others argue (probably correctly) that the language of the law offers a higher degree of precision (for a variety of reasons) than idiomatic English, and that such precision, when combined with an understanding of the historical usage / practice / custom, should lead to a clearer understanding of text / intent. Clearly, common language is not as precise, and perhaps that is a blessing whose absence would deprive us of poetry, humor, etc. It's ambiguity enriches our inner lives and colors our perceptions.

Here is the rub:

We are dealing with a *contract* of sorts (no, not that Lockean nonsense) with what are intended to be specific "grants" of power, specific limits on those granted powers, etc. Which language do you, should you choose. As i mentioned earlier, some on SCOTUS would prefer the "poetry" of the language over the precision of the language of the law. Yet, with this "poetic" understanding of the law comes all manner of confusion, misunderstandings and ultimately arrogations of power, influence by these very same Juridical poets. The problem is accentuated when the common understandings of the common language, with all its imprecision, burrows itself into the refined (not culturally, of course) precincts of the Law.
Which lense shall we employ? Shall we employ both?
Shall we fit our jurists with wide angle lenses such that they may "divine" all the hidden "mysteries" contained in the poetic power of the common tongue? The results may be quite colorful / dynamic / everchanging (Living constitutionalism, perhaps?).

Or shall we equip our jurists, in a manner not dissimilar to a thoroughbred, with a set of blinders? It does restrict one's vision but the horse will run a straight and true course.

As for me, I think we have (or, at least, had) a "thoroughbred" of a Constitution that required adherence to a well defined tract. Placing rose colored glasses upon the horses snout would, I think, confuse the poor creature and send him cascading (and through) the guard rails.
(How's that for defending precision with poetic imprecision)?

The problem is even more pronounced when one considers the common man's understanding of the Constitution while employing only the imprecision of the common language without proper deference to the more restrictive norms / forms of the language of the law.

And, no, the Courts will not uphold MY understanding of my mortgage contract as opposed to the banks understanding of the terms.

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gabe
on August 03, 2017 at 11:56:02 am

Language encodes the world. Language about rights and duties, powers and privileges, encodes what? Process. A layman and a lawyer will read the same sentence and at one/several levels they both understand it the same way. But where the layman may have a primitive or idiosyncratic understanding of what "unreasonable" means in "unreasonable searches and seizures," the lawyer will bring to the word an awareness of its meaning AS APPLIED in various cases and contexts. It's as if you and I both read a software instruction set, but you (as the technical expert) understood how the execution of those instructions would imply the need for certain computing resources, subroutines, whatever.

The two readings are not (necessarily) inconsistent, just layered differently.

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Owen
on August 03, 2017 at 13:25:58 pm

Good stuff here, Mr. Gabe!

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Paul Binotto
on August 03, 2017 at 13:44:35 pm

And, no, the Courts will not uphold MY understanding of my mortgage contract as opposed to the banks understanding of the terms.

Clearly Wells Fargo was counting of the idea that courts would defer to their interpretations. But Wells Fargo may have bet wrong.

I'm guessing that gabe is not a lawyer. A lawyer is less inclined to defer some other person's interpretation of a document just because that other person is also a lawyer. Banks are not above the law, even when they are dealing with non-lawyers.

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nobody.really
on August 03, 2017 at 13:46:04 pm

One need not know / understand all the details of a contract / agreement to be bound by it….

Uh … perhaps. But the issue isn’t whether the parties are bound, but the precisely what they have bound themselves to. There are various canons in contract—course of dealing, usage of trade—that govern how to interpret contract language, and other canons of construction that govern the interpretation of written law.

It is also important to remember that these men who “ratified” the document, also vigorously debated the document and its text, meanings and implications. One can infer that from this exercise arose a fair understanding of the terms of the contract…. From this can we not conclude that the ratifiers had a clear understanding of the terms and thus were capable of giving “consent.”

No. Rather, we can infer from this that the parties that engaged in this exercise might have arrived at some agreement among themselves about what the language meant. What this does not show is that what they would understand the language to mean is the same thing as what McGinnis/Rappaport understand the language to mean.

That said, it would be interesting to review the records of these debates to see what conclusions they drew.

But more than this, what the authors provide us with is a (relatively) simple, or at least, non-complex, means of determining textual meaning -i.e., legal meaning while providing a medium by which and through which we may interpret the text and its historical meanings / usage / practices.

It's not always clear to me that legal jargon will always be narrower than common usage. In common English, “elect” refers to a political process; in legal usage, it just means choose. In common English, “discriminate” generally refers to acting on invidious prejudice based on suspect categories; in legal usage, it means “draw distinction.” (The term “undue discrimination” has the more stigmatized meaning.) Etc.

More to the point, even if we could agree that legal jargon tends to be narrower, and that narrower usage would be useful to limit the discretion of judges, it does not follow that THIS SPECIFIC reading of the language should be privileged above other readings. That’s just injecting one person’s preferences into the Constitution.

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nobody.really
on August 03, 2017 at 14:16:02 pm

See Owens response below on layering.

Also, my assertion of narrowness presumes that the jurist will rely upon, as I said, past practice, custom, decisions to achieve, as Owen says, the proper layer. No one is asserting that all legal language is clear beyond challenge; rather, it is the attendant rules of interpretation that infuse the language of the law with a greater clarity and a more limited focus.

BTW: Discriminate does NOT mean to act / judge with prejudice. That is a secondary meaning, no doubt influenced by years of "spirit of equality" infused lawyering. It means simply "to differentiate". What we observe in your choice of definition is the fusing of common language with specific legal outcomes / cases.
Man is "the discriminating" animal. It is basic to survival - to differentiate, to discern, etc. THAT is (was) its original meaning. It is now packed with an excess of social / political meaning.

But your point, indeed this discussion, touches upon a more fundamental question and one that I may disagree with some of my Straussian friends who have advanced the proposition that the *Spirit* of the Declaration "infuses" the Constitution and subsequent law.

Briefly:

Such an approach is dismissive of the *practical* efforts and compromises made by generations of Framers, Legislators etc in striking a balance between what is "hoped for" and what is "permissible' / practical. It also diminishes the concept of majoritarianism by disregarding time immemorially honored customs and practices. This is especially true when those "equalitarians" amongst us have the reins of power and are supported by jurists of similar persuasion.

How you say:

If a jurist believes that all law is infused, and therefore must adhere to the promises / premises of the DOI, then that jurist is far more likely to read some newly divined right(s) into the constitution or statute.
If however, the jurist accepts that the Constitution is written in the language of the Law and IS NOT infused with the Spirit of the DOI, then it is doubtful that the jurist will be prone to "divine" new rights previously unknown until the "penumbras and emanations" of the DOI finally made themselves known some 200 years later.

In short, the "Spirit" should be a consideration when drafting legislation as it was when drafting the Constitution; but ultimately what we are left with is THE LAW as written in the language of the law.
Spirits belong to the language of poets, the more prosaic among our scribes not to jurists or lawmakers.

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gabe
on August 03, 2017 at 14:30:23 pm

Mr. Gabe, I want what you are on today; whatever it is, it is infusing your words with an enviable degree of clarity of reasoning

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Paul Binotto
on August 03, 2017 at 15:01:01 pm

If a jurist believes that all law is infused, and therefore must adhere to the promises / premises of the DOI, then that jurist is far more likely to read some newly divined right(s) into the constitution or statute.

If however, the jurist accepts that the Constitution is written in the language of the Law and IS NOT infused with the Spirit of the DOI, then it is doubtful that the jurist will be prone to “divine” new rights previously unknown until the “penumbras and emanations” of the DOI finally made themselves known some 200 years later.

In short, the “Spirit” should be a consideration when drafting legislation as it was when drafting the Constitution; but ultimately what we are left with is THE LAW as written in the language of the law.

Spirits belong to the language of poets, the more prosaic among our scribes not to jurists or lawmakers.

“I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written upon the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will....”

Learned Hand, In commemoration of fifty years of federal judicial service, 264 F.2d xxxvii (2d Cir. 1959).

“A host of things are necessarily left to usage, to the discussion of men learned in the law, to the decision of judges….The function of statutory law is to fix, in broad lines, the general maxims of the law, to establish principles that will be fecund in consequences, and not to descend to the details of questions that may arise in each subject. It is for the judge and the jurist, imbued with the general spirit of the laws, to direct their applications.”

Portalis, on the Code Napoléon of 1804

“A lawyer without history or literature is a mechanic, a mere working mason; if he possess some knowledge of these, he may venture to call himself an architect.”

Sir Walter Scott

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nobody.really
on August 03, 2017 at 15:21:48 pm

nobody:

Nice quotes BUT;

It is NOT my contention that jurists ought not to be familiar with the more prosaic, and indeed poetic, aspects of our language / culture but that there juridicial actions / determinations OUGHT to be limited (cabined, as some legal academics are wont to say) by the plain text and historical usage / precedent associated with the controversy.

The quote from the Napoleonic Code, while seemingly sensible, permits, in fact encourages, judicial overreach.

No, THE Lawmaker, when crafting, conceiving or drafting the Law ought to be "infused with the Spirit of the Declaration; that spirit will inevitably bend to the practical wisdom of the culture / historical practice, etc; what results is the Lawmaker's best application of the Spirit. BUT - that is the Law that we AND the JURIST are given. It is not for the Jurist to FURTHER *inspirit* the LAW as the Peoples Representative (Lawmaker) has (vicariously) set the limits of the spirit found acceptable to the People.

The Law may very well be an ass - but it is OUR ass - NOT THE JURIST's ASS which is so often proudly and prominently displayed!

BTW: Your earlier comment on "informed consent"

I wonder what do you think of modern day State referendums / initiatives where the ratifiers (the people) clearly do not understand the legal text on the ballot. Would you contend that the people did not give their consent. What most people read is the Ballot Statement, written by the political equivalent of a newspaper Headline writer - and we all know how accurate they are.
For the record, the ratification process was ACTIVELY discussed and debated throughout much of the country AND the people were a bit more involved in the process than today's referendums / initiatives and the citizenry did not benefit from the advantage of having "headline writers" for the proposals.

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gabe
on August 03, 2017 at 18:19:46 pm

"“A lawyer without history or literature is a mechanic, a mere working mason; if he possess some knowledge of these, he may venture to call himself an architect.”"

This demeans the mechanic and the mason. It presumes that a) neither craftsman has either an interest in nor a store of knowledge beyond their own particular craft and b) that neither has the "vaunted" intellectual capacity of the lawyer.

Having observed all manner of men, in all manner of occupations and in all manner of stations, it is not at all clear that the profession of law is predominantly populated by individuals of higher intelligence, higher character or industriousness than the average craftsman.

And what it DOES illustrate is the presumption of the legal profession that they, NOT the Legislative, is to be the *architect* of the polity. From such an attitude, stems the arrogance and the arrogation of powers to oneself.

No, I will take the craftsman, the tradesman as he does not *profess* to be anything other than one who sets things back on track. I suppose that is what is meant by the legal *profession* - one professes to all manner of capabilities / insights / knowledge.

Anyway, it is hard to find a craftsman nowadays; more is the pity!

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gabe
on August 03, 2017 at 18:26:18 pm

Oops, forgot this:

Some time back at a Legal Awards dinner honoring some so-and-so for some-such -silly accomplishment, I was struck by the apparent need to constantly remind everyone of how "smart" the awardee was, and by reflection, how smart all the lawyers were. My own experience with this particular person was that she was of middling competence / intelligence.

To the consternation of the other guests, I asked: "Can we attend an awards ceremony for the local Steamfitters Guild, next year.

Next year, I went off in search of the Steamfitters Awards having been banished from the Legal Awards.
Alas, I went without a "middling" chicken dinner that year as the Steamfitters did not have one.

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gabe
on August 10, 2017 at 00:12:15 am

With all respect, Professor, was this EVER really a thing? In the course of debate at the Virginia Ratification Convention, Madison asserted that “where a technical word is used, all the incidents belonging to it necessarily attended it.” 3 Elliot, Debates on the Federal Constitution 531 (1836). This understanding was invoked by Judge Pendleton, John Marshall, and Edmund Randolph in subsequent debate. Id. at 546, 558-59, 573. And everyone knew that if you needed to know the law, you went to Blackstone: There were ~10,000 copies in the Colonies.

By way of example, take the Good Behaviour Clause.

Although most agents of the Crown served "at the pleasure of the King," public officials in England were frequently given a freehold in their offices, conditioned on "good behavior." See e.g., 4 Coke, Inst. of the Laws of England 117 (Baron of the Exchequer). Lesser lords were also granted the authority to bestow freeholds, creating an effective multi-tiered political patronage system where everyone from paymasters to judges to parish clerks enjoyed job security. See e.g., Harcourt v. Fox [1692], 1 Show. 426 (K.B.) (clerk of the peace).

At common law, good behavior tenure was originally enforced by the sovereign through the writ of scire facias. But as this power concerned only the interests of his subjects, and the King exercised it only in parens patriae, he was bound by law to allow the use of it to any subject interested. Blackstone explains:

"WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias."

3 Wm. Blackstone, Commentaries on the Laws of England 260-61 (1765); see, United States v. American Bell Tel. Co., 28 U.S. 315, 360 (1888) (explaining the process).

By making an official subject to removal for violating it, the condition of good behavior defined the powers of a given office. Lord Coke listed three grounds for forfeiture of good behavior tenure: abuse of office, nonuse of office, and a willful refusal to exercise said office. Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 90 (2006) (citing Coke’s Institutes). Blackstone added that "the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [could be prosecuted] either by impeachment in parliament, or by information in the court of king's bench." 4 Blackstone, Commentaries at 140-41. Thus, the duty to be fair and impartial was an integral part of an 18th-century English judge’s job description, as was the duty to hear every case properly brought before his court.

While Prakash wasn't swift enough to figure it out, Raoul Berger nailed it 50 years ago: Good behaviour tenure was supposed to be enforced by the aggrieved litigant. And in the Speer impeachment matter, Congress agreed that they had no authority to enforce it. See generally, Charles G. Geyh, When Courts & Congress Collide (U. of Mich. 2006).

While anyone who has read significant portions of Elliot's knows that the delegates generally understood what they were doing, COTUS was written in plain English, but used terms of legal art on an as-needed basis.

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LawDog
on August 10, 2017 at 11:41:00 am

g: "Having observed all manner of men, in all manner of occupations and in all manner of stations, it is not at all clear that the profession of law is predominantly populated by individuals of higher intelligence, higher character or industriousness than the average craftsman."

Our state Bar has a character OR fitness test. lf you have any character at all, you are not admitted to the Bar. :)

You learn what you need to know. All l know about domestic relations law is what l learned from BAR-BRl. :) You can't be a competent CL scholar without a working knowledge of Coke, Blackstone, Locke, and both the Federalist and the AF responses. And most ambulance-chasers are more likely to have drunk a Sam Adams than to ever have read any of his writings.

As for the cottage industry of a servile Bar inventing awards to flatter undeserving judges, "Ah feel yore pain." When you treat someone as though he is omniscient for long enough, he might begin to believe his own press clippings. Professor Carl Bogus wryly observes:

"Some people are more vulnerable to a lack of criticism than others, and among the most vulnerable are judges. ... Saying that lawyers treat the judges with deference fails to capture the interaction; it is more accurate to say that lawyers bow and scrape. Some lawyers have elevated fawning to an art form, pulling it off with subtle elegance. But few tell a judge she is wrong."

It is a culture of arrogance and privilege -- where our judges are tempted to envision themselves as gods. The trials and tribulations of the common man are simply not their concern. Judging by the sainted Judge Richard Posner’s dazzling array of outside interests, he is simply too busy with being a lecturer, professor, author, and exploiting his notoriety to bother reading briefs. They become a law unto themselves.

An eerie judicial excursion was taken by Colorado district court judge John Coughlin -- who suddenly decided that, upon the break-up of a lesbian relationship, the mother’s live-in lover (who hadn’t adopted the child) had parental rights. ln re the Interest of E.L.M.C., No. 96 DR 39 (Denver Dist. Ct. Apr. 28, 2003). Now, if our judges are just supposed to find the law, it is difficult to fathom exactly which legal trash can Judge Coughlin dug that one out of. Regardless of your views on homosexual marriage, the idea of unelected judges making law out of whole cloth should give pause to any citizen of a democratic republic.

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