Judicial Review in an Objective Legal System

Transcript

Trevor Burrus: Welcome to Free Thoughts from Lib​er​tar​i​an​ism​.org and the Cato Institute. I’m Trevor Burrus.

Aaron Ross Powell: And I’m Aaron Powell.

Trevor Burrus: Joining us today is Tara Smith, Professor of Philosophy at the University of Texas at Austin. She’s the author of numerous books including the new book Judicial Review in an Objective Legal System from Cambridge University Press. Welcome to Free Thoughts.

Tara Smith: Good to be here, thanks.

Trevor Burrus: Your book is about judicial review but before you get to judicial review, you have to – you get through a lot of other things in the beginning and you started more foundationally – about as foundationally as you possibly can start, which is the nature of reality essentially and objectivity and you call it getting reality right. So can you talk a little bit about what objectivity is in your view and why it’s important to start with in a book of legal philosophy?

Tara Smith: Yeah, yeah. I think that’s really important. Why should we care about objectivity in a book about judicial review, which is about how should judges interpret, understand, apply the law, right? Well, I didn’t set out to – and I didn’t originally envision I would really go into objectivity when I was interested in that subject of judicial review. But for all the disagreeing schools about how should judges do their work, virtually everybody agrees judges should uphold the law, objectively uphold the law.

But they have very different understandings of what that means, of what objective law is and at the same time, even while – we know a decision when we don’t like it. People from all different ideological stripes, we know a decision – whether it be a court decision when we don’t like it or a personal decision. They gave her a raise and they passed me – whatever, right?

We’re quite ready to say that wasn’t objective. That was biased. That was prejudiced. At the same time, a lot of people going around saying, “Nobody can be objective.” We’re all biased, right? Everybody is prejudiced and so on.

Well, if we really are serious about objective law, the objective rule of law – no, there’s something that judges should be upholding and there is a proper way to do it. Then I think we have to tackle objectivity itself dead on. So part of what I try to do in the chapter is you might say puncture the mystique of objectivity because I think it’s one of these concepts that’s a little bit intimidating for people so they feel like, well, you know, I make mistakes. Everybody makes mistakes. How could we possibly be objective?

So I try to give an account of it that is realistic. It’s such – I mean I paint objectivity in such a way that it is doable. It’s demanding and it really is demanding but there is a difference between being biased or indulging prejudices or going by irrelevant factors and so on.

So that’s more to speak to why I even ended up getting into this but I just thought it would be useful to tackle what is it to be objective and then we can from there try to trace out. OK, how doest hat apply in a legal system overall? And then to the more specific domain …

Trevor Burrus: Now you talk about Rand’s concept of the primacy of existence, which helps explain what objectivity is as a – where does behavior – it’s a method of thinking.

Tara Smith: Yes.

Trevor Burrus: Which is not – which is a goal. You don’t necessarily like always realize it. You try to get to it.

Tara Smith: Right, and you should try. I mean that’s what I’m saying. You should try to – well, I think what you need to do to be objective is to – as you put it – and I put it this way in the book. It’s a method of thinking. It’s a discipline for how to use your mind. So even though we sometimes speak of objective reality, strictly speaking, no. Reality just is. It’s a person who can be objective or non‐​objective. He can be lazy. He can indulge his prejudices or I don’t feel like getting more evidence even though I know there’s some counter evidence out there and so on. So I do see it very much as it’s a way of directing and disciplining your mind such that you will, as I put it in the book, get reality right.

Trevor Burrus: Or at least closer than …

Tara Smith: Well, right. As well as you can get it, right? And here my thinking is look, let’s step back a minuet and again ask a question about, “Why do we even care about objectivity in an realm?” Again, in the decisions about who gets hired or promoted or gets the raise. Who gets admitted to a school? Who does the bank make a loan to? Is the journalist objective? Is the juror objective? Is the referee at the game last – I mean there are all sorts of domains in which we think we want – why do we want it?

There’s some either conclusion to be drawn or decision to be made and we want it made for the right reasons. We want the drug researchers to tell us is the drug effective or not. Does the drug have these side effects? There’s something we want to get right. So that’s a loose way of putting, yes, there’s a reality. There’s a certain kind of answer here. Objectivity as I portrayed is a way of using your mind that it’s the way of using your mind that is most conducive to getting the right answer. It doesn’t guarantee that you will get the right answer. But it is I think right. It puts you in the best position to know where of you speak.

Aaron Ross Powell: So we’re talking about objectivity for things like whether this drug is effective. That seems different what – the underlying reality we’re getting at is a different sort than it is for the law in the sense that like the drug is – there’s a physical thing. We can measure it. We can run an experiment. But how would we know if we’re getting – if we’re being objective in things that are just kind of agreement among people about concepts? Because obviously there’s enormous disagreement. So if we just based it on like, “Well, lots of people disagree with me, so I’ve got it wrong,” doesn’t seem right or everyone agrees with me so I must have it right. We can think of lots of counter …

Tara Smith: Right. Of course they agree with me. That’s OK. No, no. I mean that’s a good and perfectly natural question and you hear that kind of thing a lot. Look, it’s one thing to talk about physical reality, drug’s effects, safety of automobiles or so on. It’s another to talk about objectivity in the realm of things you can’t see like law or values or morality.

But there too, I don’t think we are – I don’t think the notion of objectivity even in a non‐​physical or non‐​material realm is so exotic at all. I mean think back to the example of who gets the raise or the promotion. Well, that’s not – I mean that’s not physically testable in the same way this chemical is as a drug, right?

But there’s a bit – a manager at work can make those decisions more or less objectively, right? He can pay attention to how the different employees people under him, how they performed all year, and there are much more specific measures that everybody in business out there knows of – you know, was he attentive? Did he meet deadlines? How did he deal with clients? How responsive was he? How creative – I mean there are specifics that are not material in the same way. You can’t put them under the microscope let’s say, right?

But I think we do that in a number of realms as well. So I think it’s a little harder to do but it’s certainly doable and appropriate and again lots of the areas where we complain about non‐​objectivity are about you should be paying attention to this. It’s harder in some realms. I mean – well, a lot more comes into it at the higher levels of abstraction. But I’m saying in principle, the same aim or goal should be driving the quest of – we want to get the best answers we can. We want to promote the people who are capable of doing the work, who will deliver in that role.

We want to admit students to the school who are capable of doing the work, who will maybe bring other things that we want to the student body and so on. So we have to identify what are the characteristics here just as the biological researchers have to identify what are the characteristics we’re looking for, for this kind of therapy or drug.

Aaron Ross Powell: So with the example of picking the employee who should get the promotion or the raise, what is the – this objective method getting at? Because again like in the drug trials or when we’re talking about like objectively looking at like say science looking at reality, there’s a reality and we can either understand it correctly or incorrectly and it’s independent of us. But it feels like the – who should get the promotion seems to have a level of – let’s call it like cultural embedded‐​ness.

Like we could say, you know, well objectively the person who should get the promotion is the one who was the most productive. But we can imagine there have been lots of times when the person who should get the promotion is the one who is the most related to the ruler. These are kind of culturally contingent …

Tara Smith: OK. No, no, and again good, interesting question. I don’t think it’s a matter of what’s culturally embedded but I mean you’re right to ask, “What is it that we’re trying to get after if it’s not how this physical specimen will work, right?” I think the answer is going to depend on the specific – what kind of – if we’re talking about hiring, promoting at a company, what kind of company is it? What’s its main mission? Even all companies in the same sector, right? Some might have somewhat different missions. Are we there to maximize shareholder profit or are we there to make the best damn cell phone we can? Whatever it might be, right?

But I think it’s the ultimate goal of the reason for which you’re engaged in, hiring people, promoting people in the first place. Let’s switch just for a minute to the school analogy, right? What kind of school is it? Is it a religious institution that really cares very highly or maybe primarily about turning out good Baptists or good whatever, right?

How high a value was that? How high a value was this sort of intellectual attainment or is a certain sort of socioeconomic diversity the goal of the school? Depending on what the goal is, I think that sets an awful lot then of well, relative to that, these are the relevant pieces of evidence. These are irrelevant. These are the weights that they should have comparatively and not.

Aaron Ross Powell: It the subjectivity then a hypothetical imperative?

Tara Smith: A hypothetical imperative.

Trevor Burrus: If you want to do this, then you must do this.

Tara Smith: No. Yeah, in a sense I – I mean there’s a part of me that’s just, oh, let’s not talk that Kantian language. But – even though obviously it’s the categorical imperative but I mean that – but – yes, I think in the sense that as I said, if your goal is this, if your goal is that. So yeah, but I think again in this – wanting to demystify objectivity.

There is no duty that God or the heavens have handed down. Thou shall be objective! When it’s appropriate to be objective, it is so for a reason, for a practical reason because that’s going to help me make the best decision of who to promote, who to admit to the school, whether we should use that drug, right?

I’m just trying to buy a car. I’m not dealing with other people. All right. I need to pay attention to my income, my resources, my needs, what I’m going to use it for, right? Because that’s why I want to make a good decision about which car to buy. So yes, in the sense that it will be relative to purpose or function.

Trevor Burrus: So that gets us to the question of when we’re talking about the – if them of the government, of the state, it’s inexorably tied to what judges should do when they review the law of the state.

So can you talk a little bit about why in your view legal philosophy is inexorably related to political philosophy?

Tara Smith: Sure, and let me make one further bridge connection here because I think this sort of – I think very – on your part, yeah. Great bridge from the purpose, the function. We’re just talking about the goal and that’s really important to objectivity. This is why I think we need to think about objectivity. It’s part of why I think we need to think about objectivity for a legal system and for judicial review more specifically because the function of the legal system or the purpose or the goal of the legal system is what’s going to help guide us in figuring out, “How should we set up a proper legal system?” and then how within that should judicial review be conceived and be conducted, right?

So again, even in this big legal realm, goal function is going to be really important and that’s something I think that it has been very helpful for me, my own thinking about these issues, to keep coming back to what’s the function here. What’s the role of government, right? So now Trevor, to get more directly to your question, I think – and I should say I’m not a lawyer. I don’t have a legal training. I’m a philosopher. OK.

But from all of the hard thinking and reading that I’ve done about legal philosophy in recent years, I don’t see a way that you can detach it from at least basic questions and having some answers. You know, you’re answers to basic questions about the basic role of government, which I think of as more a political philosophy question. But why have government? What’s it for? What’s its justification? Its authority?

Then I think from there, it will make sense at least according to – if the answers are certain things to those questions, it’s going to make sense to have a legal system but that should be informed by what it’s trying – what the government as a whole is trying to do. So I see a legal system as the more practical implementation of the answers to certain at least of the basic questions about the purpose and role and authority of government.

Trevor Burrus: Well, you’re very attuned to the moral component of this because as you write in the book, we cannot know when a legal system should rule or how it should rule in order to rule objectively unless we securely understand that it should rule and why. The ground on which it may rightfully wield its tremendous power and you mentioned consistently in the book that we need to remember that the government is force and it uses power and violence against people and mostly you’re not allowed to do that. So you need a good reason. I think the way you’re thinking about laws, if it doesn’t do this according to the law, then it is just force. That’s all it is. It’s just violence.

Tara Smith: Yeah. Right. I mean when you’re making laws, if you’re doing so informed by your sense of the right – the proper function of government, right? Then those laws are just further means of serving that function. But once any organ of the government, of the legal system, starts acting beyond the law, you’re basically acting without authority and you’re not in any way furthering the mission of the government or legal system.

Aaron Ross Powell: So then does this mean that on the part of judges, when they have a case in front of them and they need to rule on this, that they should be aware of what is actually law because it aligns with these first principles of government and what isn’t? So decide on the basis of whether – I guess decide on the basis of those first principles or is their job to take the law in the sense of like those rules written down by the legislature and objectively apply that?

Tara Smith: More the latter, but the answer gets a little bit complicated here. OK? I don’t think it is for judges in order for them to properly uphold the law, to play legal philosopher. Now I think it’s a lot of fun to be a legal philosopher, right? But no, if you’re putting the robes on, you’re swearing to uphold the law, not what the law should be or your better idea of the way they should have implemented those political, philosophical ideals or the answers to those political philosophy questions.

I do think if we are to be governed by the law, if we were to have the rule of law, then courts like everybody in the legal system, everybody who works for the legal system and everybody governed in that decide we have to go by the law, and as I said, even if the founders let’s say made some mistakes, until we go ahead and have the courage to amend the constitution or something, they have to go – judges should abide by what the law is even if they have some disagreements of it.

Some of the criticisms that I raised in the book of some views of judicial – of proper judicial review are critical views that I think would give judges too philosophical a – I mean I’m all for judges recognizing the philosophy and the law. But they have to recognize the philosophy that is in the law, that is implicit in what was written down rather than project their own.

Aaron Ross Powell: So how does this mesh then with the notion of objectivity as we were talking about it before where if – we institute the state in order to accomplish certain things, rights protection. So objectively then, we need to approach looking at the law with those objectives in mind, right? So if that’s – then what if the law as written runs counter directly to …

Tara Smith: Then we should change the law. But we have ways of changing the law, right?

Aaron Ross Powell: But the judge should enforce it in the …

Tara Smith: Yes! Yes, I think so because I think otherwise, we would be ruled by the judges and by their views, which may be sincere, conscientious, even correct about what the law should be, right? But no, no, they are to uphold the constitution, not their idea of a better constitution or – yeah, so yeah, I think we’ve got to go by that.

Trevor Burrus: Aaron is kind of asking and – I was intending – it doesn’t matter the order here to get to the question later after we did some more of the groundwork. This is a big question, the Judgment at Nuremberg question and it’s interesting for our listeners who don’t know much about legal philosophy prior to Nazi Germany which through a lot of legal philosophy and disarray – because prior to that, a thing called positive is in that reign, which said that law was merely a rule backed by force from the state. There are a few different permutations of that but that was basically it.

Then when Nazi Germany came along, these things were technically legal and the question of whether or not they were – there was a higher moral power that made them illegal. But in Judgment at Nuremberg, you have this horribly difficult question of the judges who enforced the laws written to put people into camps and eventually murder them. Were they doing their judicial role or were they doing something fundamentally immoral that they should have been held accountable for? Do you have a position on the Judgment at Nuremberg question or am I just asking you the worst, hardest question ever?

Tara Smith: You’re asking me one of those questions like, oh, I should have thought about this some more, more directly. So it’s a good question.

Trevor Burrus: That movie is also spectacular for anyone who hasn’t seen it.

Tara Smith: Yeah. Boy – OK, anyway, I’m not sure exactly what to say here. There – again, the way I’ve been talking about the function of a legal system, we have to try to figure out what is the proper function of a legal system, proper role of government and proper authority of government. When an entire legal system is premised on really mistaken and/​or evil principles, right? I mean, well, they didn’t have the right answers to the political philosophy questions. Therefore they didn’t set up a legal system that was consonant with that.

Therefore that’s – in a sense, that’s not what I’m talking about, right? I’m talking about in a way going back to the drawing board and thinking what should government – again, some of this is the role for philosophers, not courts. OK? But originally, why have a government? We need to have out those political philosophy arguments to figure out what’s the role of government, what’s its authority, what it’s not to be doing, you know, at least by implication. Then set up a system consonant with that, consistent in every way in terms of what the laws are, how they are administered, who they’re administered to.

Not, oh well, Aryan race, different rules for different folks, right? So the whole system there was fundamentally corrupt. But obviously we have tried to learn some lessons from what similarities there are, but I do – and again this in a way speaks to why I think the legal philosophy has to at least appreciate the important guiding role of answers in political philosophy.

Trevor Burrus: Now, we talked about – I want to go back to some of the meat here, so we can start this groundwork with – one chapter of your book is three cornerstones of objectivity in the legal system, which some of these we’ve been talking about. But I think we should clarify it. So you have a what, how and a why. There are written laws and there’s administration of those laws. So what is the what of the cornerstone?

Tara Smith: Yeah. I do think this is a – again, I found it helpful just in my own thinking about judicial review and law in general. So early in the book, I talk about what is objectivity. Then, OK, what’s objectivity in a legal system? Now, you could write a whole book just on that but in a chapter, I give this three‐​part analysis where I say basically when it comes down to – or what it’s – the three pivotal aspects of propriety, objectivity in the legal system or what it does, by which I primarily mean the content of its laws, of its rules, be they the dos and don’ts directed to citizens or the dos and don’ts of what we the legislative branch may do, must do, may not do and so on.

But it’s basically the content of the rules. It’s the what. In that sense, the what maybe is the simplest. Objectivity also turns on how a legal system does what it does, how it enacts its rules. How does it choose them? Is it just the – the dictator would be – dictates or how will we enact laws? How will we change laws? How will we enforce them? Who will the person – once you start thinking about it, there are scores of simply sort of mechanical questions about how will this all be administered. How will we change laws from time to time?

Things like the rules of evidence. When you get to court, when do you get to court? When am I entitled to bring somebody into court? All of that is crucial to the objectivity of a system in part because even if you’ve got really good answers on that first facet of a legal system, what the rules are, you’ve written great – you got a great constitution. They’re really objective, really objective laws, statutes. But if you mess up the administration of them, they’re not going to do their job and again, you have to have that job, the function in mind.

So what the legal system does, how it does it, which encompasses a great deal in the administration. It’s not the sexy stuff but the – OK. But then also why it does what it does. By that, I really mean the authority of law. What gives the government the power in the first place? What is its reason for being? Again, this brings us back to function and that I think has got to really help us answer the question of what kinds of laws should we enact and how should we enact them, enforce them, administer them such that they are all together in tandem serving the function of government?

Trevor Burrus: Why does the law have any authority?

Tara Smith: I’m sorry?

Trevor Burrus: Why does the law have any authority or when can the law have authority?

Tara Smith: Well, now, that’s a different book. I’m happy to talk about that, yeah.

Trevor Burrus: No, but you do talk about it.

Tara Smith: Yeah, yeah.

Trevor Burrus: I mean it’s important because if the laws are – I think maybe – I got from your book that if the laws are – let’s say the law on Fuller characteristics. So Lon Fuller wrote a book, The Morality of Law, where he lists – he thinks about a king named Rex who’s just giving away commands that are bizarre. They make things illegal in the past.

Tara Smith: That sounds so foreign, that sounds so foreign.

Trevor Burrus: Yeah, exactly. I have never [Indiscernible] that they make things illegal in the past.

Tara Smith: Rex, is that the name of the …

Trevor Burrus: And they make things illegal on a specific date and they have all these – they’re contradictory. So he gives a characteristics law. Real laws can’t be contradictory. They can’t be like …

Tara Smith: Private, a secret, right.

Trevor Burrus: All this kind of things.

Tara Smith: Yeah.

Trevor Burrus: So in that situation, would those laws have any moral authority? I mean would there be a why to the objectivity of law or would you be free to just break them …

Tara Smith: OK. Yeah. No, I don’t think that sort of – the model sort of – the model of Fuller that you were just now talking about, the sort of antithesis of what we have come to think of as the rule of law and the elemental conditions that – for having a rule of law in society.

No, that would not have any claim on me, any purchase on me. So again, the – what I’m calling the authority of law is again a reflection of how this stems from a view of the purpose of government and even that, more deeply I think ultimately is going to be grounded in certain moral values. But again, coming back to something that you mentioned earlier, Trevor. Government is coercion, right?

We’ve got to keep in mind. What are we talking about when we’re talking about legal power? The power to make people do things, whether or not they want to. I think that’s a legitimate power for very limited purposes, to keep you Trevor from picking Aaron’s pocket. You know, from infringing on his rights.

So the authority of government comes from it’s being dedicated. You know, doing the best job it can to fulfill its reason for being. What gave it its authority in the first place is you government, you fulfill this function. Protect our rights.

So that again will serve – when I say that will serve to guide us, it doesn’t mean that answers all questions and the waters part and that there aren’t some hard, difficult arguments to be had about exactly how the legal system should do certain of these things.

But I think that function does provide the compass by which we can figure out. So then your authority will only extend this far government and that should inform the what and the how of the legal system. So again you’ve got those three facets.

Aaron Ross Powell: So if government is – most of what it does is force, right? But it’s OK when it forces people to do things that align with this goal of rights protection or whatever its particular telos was. Then what makes it different from me? Because I could say – rather than being a research fellow at the Cato Institute, my new purpose is to protect the rights of everyone …

Tara Smith: You’re sort of Robin Hood for rights or something like that.

Aaron Ross Powell: Right. I was thinking Batman.

Tara Smith: Oh, Batman! Yeah.

Trevor Burrus: You know, Aaron, that’s hilarious by the way.

Aaron Ross Powell: Batman seems to be let’s say a non‐​state, right? We wouldn’t say he’s enforcing the law. He’s enforcing but …

Tara Smith: You say that to Batman and – yeah, yeah, OK.

Aaron Ross Powell: But he’s …

Trevor Burrus: Maybe Judge Dredd would be a better one.

Aaron Ross Powell: He’s just, right? Like he’s – we – or we could stipulate that. So how – but we wouldn’t let him go around doing the things that we let government do. So how do we get to that? How does government – so it still – it remains force when an individual enforces right. But it’s not force when government …

Tara Smith: Well, simply if he unilaterally does it or he does it and it’s not in the context of an immediate emergency to try to save his life or …

Aaron Ross Powell: Sure.

Tara Smith: Right, right, yeah. In all honesty, that’s an issue I want to think more about that is the real originating of legitimate government. But I will say this and I think it’s important. I do think there’s a difference between having an organization, an institution, such as government whose dedicated purpose is – and it’s understood by everybody to be they’re the ones who will protect rights. In order to do that, they will be justified in enacting those rules and enforcing them and holding everybody accountable to them, that are designed to fulfill that mission.

You as a private individual, Batman or whomever, right? I don’t think you have – yeah, actually, I don’t think you have the same authority that somebody or some institution does when it is their – in order to protect everybody’s rights, I mean – we the government now, may have to impose some rules that you as an individual wouldn’t be entitled to impose on your neighbors. But in so far as they’re the ones whose job is to think about how are we going to govern, a few hundred million people or even obviously in much smaller communities still. They’re going to have to have the authority to do more than a private individual would be able to do. But it has still got to be governed by what it’s doing is its – you know, its best effort to fulfill its mission and not overstep those bounds.

Trevor Burrus: When we’re talking about the government as people – so one thing that kept popping in my head reading about Judicial Review, which we will return to more specifically …

Tara Smith: Sure.

Trevor Burrus: But it – the question that struck me was whether or not – because we often talk about the government as some sort of homogenous or comp one thing as opposed to a bunch of different people working different jobs.

Tara Smith: Yeah.

Trevor Burrus: And one of the really interesting questions that I don’t think has been explored in legal philosophy law, but I think your book kind of touches on it, is discretion of different actors in the legal system because that discretion exists – say example for police officers and the question of whether – so a police officer may decide to not enforce – he might see a guy – a kid smoking marijuana on the street under the stoop.

Tara Smith: Yeah.

Trevor Burrus: And he might decide not to enforce that because he’s almost doing a weird type of traditional review. He has like reviewed the law. He has reviewed the facts and he has decided he’s not going to enforce it. He’s going to say, “I’m just going to tell your mom on you.” Now we could argue that what police officer is doing is against the meaning and purpose of the state because he’s supposed to be just enforcing all laws equally or it is putting a type of discretion in the system that he’s not allowed to have and he’s – so therefore his job is to enforce all the laws all the time. Is that a kind of weird – do we have a philosophy of state actors, what they’re supposed to do too in addition to judges who are reviewing the law?

Tara Smith: Yeah. No, that’s an interesting question. I don’t have a theory of state actors but I think – you know, of this sort that answers this but as usual, I have a few things to say. I do think the role – there’s probably scholarship out there that I’m not aware of on the proper role of discretion at different levels and layers by different agents of the legal system and there should be because it’s – I think it’s an important concept and I think – I mean I think that a – an objective, properly‐​functioning legal system needs some degrees of discretion for different people and it might be at a police officer or a judge or a prosecuting attorney, right?

Resources are limited anywhere whether they’re a lot or a little. They’re always limited. You’ve got finite resources to put on whatever the NYPD wants to focus on let’s say this year or the prosecutors – how many cases. They’ve only got a staff of so many and so on. There are always going to have to be choices made. Discretion is one of those terms that’s sometimes used in – as license for arbitrariness. No, there’s no room for arbitrariness in an objective legal system from anybody, from the guy at the DMV or the police officer or the judge or whatever, right?

So no, arbitrary, reckless – for no reason that seems to have anything to do with the proper functioning of the legal system, yeah, that such cop would be derelict of duty. But the cop also has so many hours in the day and so now, we would want to know more about the specific sort of case you raised. So I don’t think the proper rule of law demands no discretion for any legal agents anywhere. No, there are always going to have to be judgments made and this is one of the things I stress even in – well, in regard to judicial review in courts.

The best made laws, the best made principles, the best made – the best understanding of the proper methodology for judges doesn’t answer all the questions. Judgment is needed from human beings, individuals as you say. There isn’t just this monolith government. No, it’s this judge. It’s that attorney and that prosecuting – right?

They’ve got to use their honest objective judgment to be faithful to the law in doing a good, responsible job of fulfilling their specific responsibilities in the legal system and that’s going to involve some discretion. But I mean I do think more work – again, I’m sure there’s a lot of work out there that I just am not aware of. But it’s an important topic because it’s one where again a lot of people think, oh, discretion. You see, game over. It’s all biased. It’s all personal connection. It does not have to be. It’s sometimes that. Sure, sometimes people abuse their discretion but it can be used responsibly and objectively.

Trevor Burrus: You brought up the rule of law which is – which kind of – as you said, all those stuff touches on it including the discretion of state actors. But you call the rule of law a moral ideal in the book. Why is the rule of law – because sometimes I think that the rule of law might be overrated. I don’t want laws that they don’t – so as a redhead, if they made a law that cut off every redhead’s hand, I hope that that law is not administered equally. I would really hope it’s not. People who …

Tara Smith: Sure, but that’s because it’s a crummy law.

Trevor Burrus: Yeah. So would it have to – does it have to have a subset of – so when and how is the rule of law moral ideal?

Tara Smith: Yeah. No, that – again, really interesting question and I think most people – not all by any means but most scholars of the rule of law think of the rule of law as amoral – you know, not immoral but not morally charged, but morally neutral, value neutral. This is something that a lot of people like about it and as the rule of law has really been touted more and more throughout the world in the last 20 or 30 years. You’ve got the IMF or the – also it’s a global economic – all we hear about is rule of law. As long as your laws are clear, as long as your laws are promulgated and mutually consistent, not ex post facto, et cetera.

There are seven or eight or nine conditions. People think then everybody can have the rule of law and it doesn’t matter if you’re a theocracy or a democracy or you’re a libertarian or egalitarian or what have you, right? So that’s a very dominant model. Now again, not everybody thinks that but most people do and I very much think that’s a mistake and I think it’s an important mistake.

I do go into this in the book but just say a little bit now. I don’t think you could even figure out what the proper so‐​called formal, non‐​value‐​oriented – what the formal conditions would be without presupposing, without relying on some ideas of the kinds of laws we should and shouldn’t have or the kinds of purposes for which laws shouldn’t be used.

Let me just give maybe one example to try to be fed up a little bit. Why not have ex post facto laws? If I’m a theocracy, I’m running a theocracy, right? And I get a sudden revelation that those laws that have been in place for a long, long time and everybody is thoroughly accustomed to and so on, oh my god, they are on a front too, to our god. God hasn’t given me time to change this.

Ex post facto, tough luck, right? But again it’s just a quick indicator of depending on what your larger ideals are, they’re actually going to color what seem to be reasonable formal conditions and let me also bring this back to the purpose of government and the nature of government as coercive.

When we talk about the rule of law, we’re talking about how the laws will be made and enforced literally, right? We’re talking about something moral, right? If we think it’s wrong to use force against people, unless they’re initiating the use of force against somebody else, right? If we think there’s a wrong there, if we think that government power, government coercion may only be legitimately used on certain grounds, then that has got to inform even our understanding of what’s essential to truly have the rule of law as opposed to the very orderly rule of thugs, right?

The completely predictable and trains run on time rule of dictators. That’s not the rule of law. It’s a lookalike in some ways but don’t be – my preaching to some would be don’t be confused by the appearance.

Trevor Burrus: But are those categorically different? So thugs, I guess that …

Tara Smith: As soon as I use that word …

Trevor Burrus: No. It just presupposes some – a negative moral capability but we can imagine the enlightened dictator who promulgated rules arbitrarily himself. But they were always morally just. I mean he had no …

Tara Smith: Apart from the fact that he’s a dictator.

Trevor Burrus: Yeah. But he only enforces his will and so – there’s no democracy. There’s no rule. It’s unpredictable but it’s just on some sort of basic level. But it just always happens to align with preexisting moral precepts as opposed to another system that has written laws and all this sort of things that obey the rule of law in some sort of sense but is less just. Should we prefer a rule of law society or my – the question does not make sense or the – would you prefer a rule of law society over a dictator even if the dictator is more just?

Tara Smith: Not sure I fully get the – I don’t think it’s – well, I don’t think either of them is what you would want, at least – if I’m understanding the two alternatives are you’re painting them out, to the extent that the just guy is a dictator – you know, just that he might be wise, reflective, smart, even getting a lot of – to the extent of that he’s taking – we’re going to have to go into exactly what we mean by dictator here, right?

But if he’s taking freedom that is not his away from the people, that’s not a proper legal system. So that’s not the rule of law. That’s the rule of his very well‐​intentioned, reflective ideals, right? And I think something similar would go for the alternative.

Trevor Burrus: Yeah, I think that’s true. At one point you get into – the moral premises are very important in your book and I think one of the reasons for a lot of Aaron and I’s questions in this is that – I mean Rand is very influential on you and your book and you say it all the time. But the interesting thing is why is anarchy not OK here or why we have to sort of follow ourselves into this rule, that the status has to be there.

Aaron’s question about Batman was actually the same as Roy Childs’ question about who’s going to – if a competing security agency comes in and enforces things in a more just way, then does the government have to – this whole question about moral authority but you get to the five premises for moral and political foundations beneath the law as moral authority, which I think is your answer to this question or how maybe some – there are certain things that the legal system has to do to respect individuals and the rights of individuals that they have.

Tara Smith: Yes. I mean I do have a chapter going into the moral authority beneath the law and again it’s a kind of bridge from answers to certain political philosophy questions to then the propriety of a legal system, a legal authority. But yes, I mean I – I sketched the idea of individuals rights because of individual needs for reason and freedom as a precondition to be able to exercise that reason and …

Trevor Burrus: But that’s what makes the state – if the state does that, it’s just. But if it doesn’t do that, it’s unjust.

Tara Smith: Yes. In so far as the purpose of government, I think is to protect the individual rights and these rights are grounded in our nature in a sense which I try to unpack and explain somewhat in the book, but yeah.

Trevor Burrus: But that’s where the question – let’s get into the Judicial Review now and the role of judges. If it’s the moral authority behind the state that gives it legitimacy and not the state qua the state, then when judges are doing a review, should they just not enforce laws that – that contradict those moral principles …

Tara Smith: Yeah. No.

Trevor Burrus: One of Aaron’s first questions too.

Tara Smith: No, very much – pretty much the same question and – yeah, but no, it’s a good question. But here again, no, I think courts, judges have to uphold the law as we have made it even if we’ve made some mistakes in the making of it, mistakes vis‐​à‐​vis those deeper moral principles because to even have a legal system is to say we can’t go directly from conclusions of political philosophy to cop, draw your gun. Now, that’s a graphic way of putting it but we need the intermediary layer so to speak of a legal system, with all that that entails, with – OK, we’re going to have rules. We’re not just going to, oh, I know the answers from philosophy seminar.

So Trevor, you’re under arrest or we’re declaring war on you – it’s like no, if we’re going to govern large numbers of people and govern them in an organized way that is most conducive to our actually protecting their rights. We’re going to have to have rules that everybody can know in advance such that – I mean the point of having the rules is so that people know if you abide by these, you’re basically respecting other people’s rights and then we the government don’t have to get involved.

So I mean there’s also just – what the law communicates is not simply when will I go to jail or be fined but the kinds of behaviors that are necessary for me to actually be and for us all to enjoy the benefits of living in a society in which we are respecting one another’s rights.

But because it’s not self‐​evident, oh, government should protect rights therefore he should be arrested – you should stop that kid on the block and so on, we need this intermediate layer. Then if we’re to be governed by that, as I think we should – we have to be, courts should go by the law as it is. They can express their reservations about what the – I mean maybe they shouldn’t do that from the court. But they can vote for who they want to and they go to the ballot box.

But if they think some people would change laws, that they think need to be changed, but they’re there to uphold the law, not their idea of a better law. Even if I might agree with their idea of what a better law would be. I mean there are laws that I don’t like but I think the government has got to enforce them and I rue the government when it doesn’t do that because that’s a much – I mean much more dangerous I think in the long run to have …

Trevor Burrus: It’s arbitrary.

Tara Smith: Yeah, exactly. It’s pick and choose. Yeah.

Aaron Ross Powell: So how does your theory of judicial review – how is it different from the other – I mean there are many competing theories of judicial review. So maybe can you just contrast it with say originalism or living constitutions? Some other ones our listeners may have heard of.

Tara Smith: Yeah, OK. Sure. Let me – OK, briefly on living constitutionalism but then I will come back to originalism. Living constitutionalism – though we haven’t used that term has actually come up in some – what we’ve been talking about, particularly the few times that I’ve said judges have to go by what the law is, not what they think it should be whereas some of the advocates, many of the advocates of living constitutionalism which takes in a lot of different views, but I’m thinking of a Ronald Dworkin theory or the aspirationalist views of the contemporary would be Jim Fleming. I love Jim Fleming. He’s a great guy. But I completely disagree with him on this.

They will speak of realizing our best ideals, which is a lovely idea. But I think not for the court to engage in. If we want – if we as a society want – think we haven’t done justice to the ideal of equality or the ideal of liberty or whatever it might be, then it’s for us to make some changes in the legal system. But it is not for the courts. Again even when they are the smartest, best‐​intended and so on – no, they are to uphold the constitution, not their idea of a better constitution.

Originalism is – take a deep breath here. When I started out working on this whole subject about nine or ten years ago, I just thought, “Yeah. How should judges interpret the law?” and I thought I might spend the semester, maybe do an article and – but it – it quickly evolved. Yeah, because I found the question complicated. I found the people I was discussing it with really interesting and I learned so much I have to say from people in legal academia. I learned tremendously. Even while all of my first instincts were originalists and I definitely share the opposition that they voiced to many of the alternative views, living constitutionalism, popular constitutionalism, some other views as well.

In the end, what I’ve come to think is the originalist makes a really important mistake that’s as subjectivist as the views that they oppose. One of the things I try to do in the book is distinguish the original from the objective because I think – obviously there are different species of originalism and there are I think cruder and much more sophisticated species from originalism and here – I’ve learned a lot from really smart originalists. I’ve learned a lot from them.

But for all I’ve seen so far, I do think they – I’m speaking broadly here but I think they fall into this trap of equating objective meaning, the – what’s the objective law with what was originally thought about something and it locks us into the mindsets of certain people and gives those people more authority than they really have and mistakes the actual objective meaning of the law. Now again, I go into that much somewhat technical detail but I think very followable by a layman in the book. But yeah, so I just – I really want to distinguish what I think is objective understanding and objective meaning from original meaning.

Trevor Burrus: So let’s apply one of these to get an answer. So probably the most originalist heavy Supreme Court decision in the last ten years is Heller versus District of Columbia which is just a cavalcade of originalism on Scalia’s majority opinion versus Stevens’ minority opinion to interpret the Second Amendment. Now what would an objective judicial review do when they look at the Second Amendment, the right of people to keep and bear arms will not be infringed with the predicate, with the …

Tara Smith: Yeah.

Trevor Burrus: With the predicative element of in order to ensure the security of a free state versus how the originalists did it.

Tara Smith: I don’t know. I hate to say that but the gun issue, the Second Amendment, is not one that I’ve been that interested in. So I’ve neglected it.

Trevor Burrus: If it’s a bad example, we can choose a different one.

Tara Smith: OK.

Trevor Burrus: I thought your answer would be something about like looking at the right of self‐​defense before the right – the words in the constitution.

Tara Smith: That might even be my answer but I would want to think about it a little bit more but that’s one that I just – yeah. Equal protection maybe or …

Trevor Burrus: Yeah, one of the – where an originalist would decide one way but maybe …

Tara Smith: Well, yeah. Why don’t we say a few words about equal protection? Fourteenth Amendment equal protection, right? That has been in the news somewhat recently when you think about the dispute about religious exemptions for instance. First Amendment, free exercise of religion, Hobby Lobby, right? No, I mean – so whether it be in regard to the Affordable Care Act and religious institutions, be it private or – well, private, religious universities or Little Sisters of the Poor or a Hobby Lobby, a private business, right? Having to fulfill the equal protection requirements of employment law and non‐​discrimination by giving some sort of insurance to all their employees or the religious – we seem to have a conflict there. We can come back to the conflict issue even separately if we want in a bit.

But when we think about equal protection – I’m sorry. I was going to say the other thing it arises recently conspicuously in regard to is gay marriage.

Trevor Burrus: Yeah.

Tara Smith: Right? And this religious business doesn’t want to make the wedding cake. Sorry, right? So again, we seem to have a conflict out of that. But it’s – well, what does equal protection mean? When the 14th Amendment was enacted, right? The people who enacted it and most people in society at that time had certain ideas of who would apply to it and in what ways. Women having the vote, no, that wasn’t on their minds in 1865 for the most part, right? Yeah, he’s getting married. Lunatic! I wasn’t thinking that 15 years ago. Are you kidding, right?

Well, the originalist, I think – and there may be an originalist who will correct me on this. But as far as I can understand, even the public understanding originalist will say we have to go by the meaning of the law which was what the public understanding was at the time it was enacted.

I’m saying, no, we have to go by what equal protection means and that means that – I’m thinking of Loving v. Virginia or whatever it was, right? I mean, no, those people – the black and the white. Equal protection means they get to get married and the woman gets the vote, right? And yeah, the guys get to get married too if this is how you’re going to legally award benefits to marriage and so on.

So that’s just an example of how I think the understanding at a certain time. They weren’t thinking black’s education together, right? So they had a conception of who equal protection protected in and in what ways and they didn’t have in mind integrated education. But if we’ve later come to think, no, no, equal protection really means this or really encompasses this, then that is the kind of thing the objective theory of law would say we’ve got to do.

Trevor Burrus: That’s what an objective judicial opinion would basically write this in …

Tara Smith: We try to figure out what is equal protection. Yeah, yeah, and I mean there are so many asterisks or footnotes at least, clarifications I guess you might put on this. The sheer fact that we today think equal protection means thus and such, that doesn’t mean we’re all right, right? I don’t want to elevate today – well, this is today’s opinion or today’s consensus as if there were a consensus, right? But to the extent that we can say, well, most people today think this versus what most people thought in 1865 or whatever.

I don’t want to in effect privilege the contemporary over the historical because we might be – I mean we may be – but to the extent we have followed objective methods and that will vary on different issues, right? But to the extent we have engaged in truly objective though, then we’re in a position to say, “Oh no, equal protection means this. That was a mistake. Those people need to be allowed to marry one another,” or to vote or what have you. So anyway, that’s one.

Trevor Burrus: So what sort of characteristics should we be looking for in judges when they’re appointed to the Supreme Court or circuit courts? Maybe they’re different at different levels.

Tara Smith: Yeah. OK.

Trevor Burrus: As voters, as informed people, the next Supreme Court position that comes up, if Tara Smith was there to say these are the judges who should be raised to the highest court in land. What sort of characteristics are they looking for?

Tara Smith: Boy, that’s an interesting question that you can – you can take on a few levels and there are a few different kinds of responses I want to give. I think I’ve got three different kinds of responses. So let me quickly try to say a little bit about each of them.

One thing I want to say is judicial review is hard work and I think sometimes we underestimate that certainly in popular debate, but even sometimes in scholarly discussion of these issues but much more so I think in popular debate, which gets heated when they’re presidential election and some older members of the court and so on, like the vacancies and so on.

It’s very difficult abstract work to be objective in figuring out, “Was that a search?” When the police stopped that guy, did that really constitute a reasonable search or do they have reasonable grounds or – I mean think about free press, right? Well, freedom of the press, does that encompass the freedom to not divulge your sources in the course of an important government investigation? The answers to these are complicated and that doesn’t mean there are no answers. But it means it’s going to take some pretty sophisticated work.

So even – well, I think voters to the extent they’re thinking about the kinds of people we should run on the courts, they have to appreciate that you need both real – you need from members of all the high courts, right? Real knowledge of the law, of the history of the law, of why the different laws are there, because one of the things I stress in the book is the philosophical character of the law and you do want judges to understand and respect that philosophical context in trying to make out the meaning of any particular provision. OK?

So you’re going to need people who have a good command of the law, its philosophy, its history, the existing rules and all of that. I will say – and I talk a little bit about this in the book. I think there are two main characteristics that you need to look for. Intellectually, they need to be really skilled, conceptual thinkers who can think in principle, who are good at distinguishing the peripheral from the essential on issues because a court is continually faced with a question. So is this a violation of Fourth Amendment? Is this a violation of let’s say the gun rights, the – is this equal protection?

The answers are hard. You’re going to need people who are really good at separating the extraneous from the core. OK? You’re going to need people with a moral character of integrity and much as we rail against the judicial activist and the – just making the law and inserting the law and that certainly happens and that certainly needs to be condemned – that is wrong. You don’t – as we’ve said about five times today, right? You don’t want judges imposing their views. You also want judges who have the courage to live up to the constitution’s convictions and assert themselves and not simply defer and here I think the people at the Institute for Justice are doing very good work when they champion what they call “judicial engagement”. Yeah!

The judge – you swear – your oath of office is you will uphold the constitution as much or as little as that is. But it is absolutely irrelevant that most people today want the law to be such and such, that this decision would be unpopular or socially divisive. That’s beside the point.

The law is the point and it’s going to take courage because they’re going to take a lot of flack sometimes for turning down things that the congress and the president have enacted or have done but the blame then is on those other branches for not – OK. The only thing I do want to mention is there was a really – I thought a very good piece written a few months ago by Randy Barnett and Josh Blackman in the Weekly Standard which you could get online and it was directly on this question of, “What should we look for in this?”

I thought they – I thought it was a very good piece and I agreed with just about everything. I might have had a few smallish – but I mean – and one of the good things they said was, you know, don’t – when we have these senate hearings, confirmation hearings and so on, don’t ask about specific cases. Ask about are you willing in principle to overturn precedent, right?

Ask about clauses of the constitution. What do you think that means? Try to draw them out on that. I thought that was the right‐​minded approach because it’s a more fundamental, more principled, more philosophical approach.

Trevor Burrus: Thank you for listening. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, find us on the web at www​.Lib​er​tar​i​an​ism​.org.