Posted by: captainfalcon | May 6, 2010

Thought for the day

From an essay by Scott Shapiro.

Political questions about who should have power and how they should exercise it are intimately connected to questions of trust. Legal systems are constituted by delegations of awesome power to individuals – power that can be, and often has been, exploited to devastating effect. Conferring authority on those of ill will not only endangers mundane political objectives but more importantly, and ominously, provides a fertile environment in which tyranny and anarchy can grow. The need to discriminate between the trustworthy and the untrustworthy, therefore, will always be a central and pressing concern of legal design.


Because power normally tracks trust, it is useful for many purposes to conceptualize the distribution of rights in a legal system as a distribution of trust, or as I will call it an “economy of trust.” Monarchies, for example, can be understood as based on radically inegalitarian economies of trust, where only royalty is trusted to set the terms of social cooperation. By contrast, democracies are based on more egalitarian economies, where trust is widely distributed to its citizens. Systems of absolute legislative supremacy dole out greater trust to legislators than ones with judicial review. Regimes with unitary executives distrust committees to make decisions and hence grant a monopoly of trust to one person, whereas those with plural executives are more suspicious of individuals with large concentrations of power and hence disperse trust over a greater number of persons.

On its face, this is a better way to understand the two politically significant approaches to Constitutional interpretation in the United States than the traditional originalism versus living constitutionalism or (its predecessors) strict constructionism versus loose constructionism and interpretivism versus non-interpretivism.

Conceptualizing the approaches in traditional terms suggests, wrongly, that what’s at issue is how to figure out what the Constitution requires. (Wrongly because if we really wanted judges who were serious about figuring out what the Constitution requires, we’d place a premium on methodological consistency. Some do, but the vast bulk of the right don’t really care that Scalia isn’t consistently originalist, and I didn’t hear a howl from the left when Stevens used originalist analysis in DC v. Heller.)

The battlegrounds in the war over the judiciary make a lot more sense if we assume that what people care about is who is trustworthy. Liberals trust the judiciary (which is drawn from their cultural ranks), so they are activists; Conservatives distrust the judiciary (because it skews liberal), so they urge judicial restraint. And, of course, those who refuse to accept that it is a matter of trust (as opposed to a matter of interpretation) also refuse to get the activist versus restraint debate.

On the other side of the coin, assuming that it’s a matter of trust also makes sense of the otherwise inconsistent jurisprudence of some American judges. Conservatives tend to trust the executive, distrust the judiciary, trust entrepreneurs more than government, and government more than those accused of crime. Their jurisprudence generally reflects this; it is deferential to the executive, aims to hobble the judiciary with a latticework of rules, one set of which requires it to strike intrusive Federal economic legislation, another set of which requires deference when it comes to crime-fighting.



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