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20200329 – Republic if you can keep it

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Annotation 2020-03-29 083536

MAIN IDEA:

The main idea of this book is to express author’s legal philosophy as originalist and textualist, provide general overview and somewhat critic of current American judicial system, present author views on ethics of legal profession in America and support all this with texts of previous speeches and brief discussion of representative cases.

DETAILS:

Introduction

Here author presents how his confirmation as Supreme Court Justice prompted him to write this book to explain his legal philosophy, understanding of Constitution, and role of a judge. He also discusses his life, key points of development, and transitional character of his new position.

  1. “A Republic, If You Can Keep It™

This starts with discussion of the long line of Supreme Court Justices who supported American tradition of Self-rule by adhering to Constitution and laments current increasingly growing attitude to Justices as politicians in disguise who manipulate legal system in any way that supports their agendas. Author expresses his believe that it is completely wrong and that judge should act in accordance with written law the way it was understood when written and provides example of proper way of change via Constitutional Amendment.

  1. Our Constitution and Its Separated Powers

Author starts this chapter with citation from wonderful constitution of North Korea, which guaranties all conceivable freedoms and lots of free staff. Then he notes that, as all other communist / socialist constitutions it is really nothing more than words on paper with no relevance to reality. Then he contrasts it with American Constitution, which is short on promises and guaranties, but long on structural design of the system and procedural details of its functioning. Then he specifically looks at the role of Judiciary as interpreter o laws versus law giver and provides case examples when judges overstep their role. Then he discusses what happens when various branches of American government usurp powers they are not entitled to by Constitution. Author provides texts of earlier speeches and some cases demonstrating his points: Of Lions and Bears, Judges and Legislators; Power without Law; Gutierrez-Brizuela v. Lynch; Caring Hearts v. Burwell; United States v. Nichols Sessions v. Dimaya

  1. The Judge’s Tools

Author starts here with recollection of his days in Law School when he was taught about “living” Constitution, which practically means judge disregarding actual text in order to achieve preordained conclusion, which this judge consider preferable in interests of “progress”. He then describes his discovery of people who believe differently and his conversion into this believe. Then he moves to discuss in more detail ideas of Originalism and Textualism.

Originalism and the Constitution

Here author discusses notion of originalism, which he defines simply as: “Originalists believe that the Constitution should be read in our time the same way it was read when adopted.” He also provides examples of such understanding in case of huge changes of meaning of words over centuries:” Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies. Consider a few examples. As originally understood, the term “cruel” in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser. Take another example. As originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet. Or consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.”

Author also debates various objection to this approach voiced by supporters of “living constitution”.

A Case for Textualism

This is another item of contention related how to interpret texts. Author position is:” any theory of interpretation seeking to comply with the Constitution and the values it seeks to serve must respect the divide between making legislation and interpreting it; honor the grueling legislative process, not seek to invent new shortcuts; and protect the people from political pressures when it comes to the application of the laws in their cases and controversies.

Textualism does all this. When interpreting statutes, it tasks judges with discerning (only) what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment. Rather than beginning with legislative history or making economic hypotheses about social consequences, a textualist starts with dictionary definitions, rules of grammar, and the historical context in which a law was adopted to see what its language meant to those who adopted the law. In this way, textualism offers a known and knowable methodology for judges to determine impartially and fix what the law is, not simply declare what it ought to be—a method to discern the written law’s content without extraneous value judgments about persons or policies.

Maybe the most prominent interpretive tools used by textualists are the so-called “canons of construction.” But don’t let the arcane name fool you. The canons are little more than commonplace rules of English usage and grammar—like the rule that the verb “includes” followed by a list introduces examples and not an exhaustive list.”

As with originalism, this follows by debate with opponents of textualism and careful review of their rejection.

In the second part of this chapter author provides review of four cases that demonstrate real life application of these ideas: United States v. Carloss; Carventer v. United States; United States v. Games-Perez; United States v. Rentz

  1. The Art of Judging

Here author discusses quality of judges and process of judging. That’s how he defines key points:” When it comes to the art of judging, I’ve learned over the years from watching my mentors and heroes that a good judge knows a few things. A good judge knows that often the lawyers in the case have lived with it for months or years and thought deeply about it long before the judge enters the picture; they deserve the judge’s respect as valuable colleagues whose thinking can be mined and tested to better the judge’s own. A good judge recognizes that existing judicial precedents reflect the considered judgment of judges who have come before and sometimes embody the settled expectations of those in our own generation. A good judge listens carefully to colleagues, appreciating the different perspectives each brings to bear. A good judge always questions not only the positions espoused by the litigants but his own tentative conclusions as they evolve. Pride of position and fear of embarrassment associated with changing one’s mind play no useful role; regular and healthy doses of self-skepticism always do.”

He also discusses a very important issues of social pressure and courage that a good judge needs to stand his ground when public opinion is going against the law. Author includes here a few relevant speeches and discusses some cases:

On Courage; (How) Do Judges Think? Of Intentions and Consequences; On Precedent; Henson v. Santander; A.M. v. Holmes; American Atheists v. Davenport

  1. Toward Justice for All

This chapter is about distance between legal ideals and realities of life, which often makes access to law difficult if not impossible for regular people. Author starts with the story of old fight between homesteaders and cattle barons in Wyoming at the end of XIX century when legal maneuvering succeeded with helping barons literally get away with murder. Then author links it to contemporary situation when access to legal protection is all but impossible for average person due to its expense, unlimited protection for prosecutorial misconduct and even crimes, overcomplication of laws and procedures to such extent that regular, even well-educated individuals could not effectively represent themselves even in simple and obvious cases. Author also critics overproduction of criminal laws, currently over 4,500 that nobody could reasonably expected to know, leave alone follow. Author also points out dangerous trend of substitution of jury trial with plea bargains, when prosecutors achieve nearly 100% success by blackmailing defendants either by overcharging or threat of financial ruing or both in cases, they insist on jury trial. As in other chapters, author provides text of a few relevant speeches and discusses some cases to illustrate his points:

Law’s Irony; Access to Affordable Justice; A Note on Jury Trials; Mathis v. Shulkin; Hester v. United States

  1. On Ethics and the Good Life

Here author discusses ethics of legal profession, the subject he taught for many years. Specifically, he discusses whether the prima loyalty of lawyer should go to the law or to the client. The illustration:

A Tribute; White and Murrah; But My Client Made Me Do It; Ten things to do in your first ten years after graduation;

  1. From Judge to Justice

The final chapter returns to the story of author confirmation to Supreme Court:

The East Room; The Senate Judiciary Committee; The Front Porch

The book ends with Author reference to the tombstone of early American lawyer Increase Summer, which symbolizes what the good lawyer should be:

Capture

MY TAKE ON IT:

To say that I strongly believe in legal originalism and textualism would probably be understatement because I just could not understand how “living constitution” and lawmaking by judge on the fly could be considered as anything else but complete arbitrariness: rule of men not the law. Moreover, the men in question were not a subject to any control and pretty much limited only by other men of different legal and political ideology. Currently the real law practically defined by balance of power in Supreme Court for all important issues, making it nothing but a tool of a party. Similarly, outcome of any legal proceedings is defined by balance of political power, including popular support of one or another approach, which, sometime (not that often) even overrides money and power of connections.

 


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