Another legacy of the New Deal
Posted by aogWednesday, 19 November 2003 at 08:51 TrackBack Ping URL

Lawrence Solum (via Instapundit) is unhappy with the spiral politicization of the US federal judiciary. I can’t say I’m all that happy with it either, but the causes are a bit deeper than the last few decades. The trail stretches back to the New Deal and FDR’s court packing scheme. This marks the place where courts were changed from apply law to dispensing “justice”. Once you’ve lost the requirement that the job of the courts is to render legal judgements and instead strive for “social justice”, then you have a politicized court system.

That is why I am a strict Constitutionalist. One can argue that a document written a couple of centuries ago isn’t adequate for our modern society (I don’t believe that, but it can be argued). What doesn’t follow is that therefore we need a “living” Constitution, subjected to the vagaries of ideological fads. This, of course, is one of the leading contributors to the politicized judiciary bemoaned above. The Founders realized this potential problem and left us an Amendment process to deal with that. However, it’s a system that’s very resistant to allowing elites to impose their vision of society on the masses. While I’m profoundly grateful for that, it doesn’t sit well with modern politicians who have increasing politicized the judiciary to work around that restriction. Until we go back to considering the courts fonts of law and not justice, there’s way off the spiral.