With the goal of eliminating personal choice, Scalia, engaging in the quintessential Rulist approach, makes the personal choice to reinterpret the “Rule of Law as the Law of Rules.” Because he applies this approach to remaking the Supreme Law of the Land into the Supreme Rules of the Land, this essay takes to task the Rulist quixotic quest to eliminate personal predilection within constitutional interpretational methodology. This essay seeks to pull back the curtain to demonstrate that (1) Scalia’s rewrite of the words and meaning of the Rule of Law and (2) the ideal of the Law of Rules hide the personal predilections of Scalia and the Rulists. They seek to eliminate the personal from constitutional interpretation by imposing their personal views on constitutional interpretation. They engage in the personal interpretational methodology that they claim to abhor. They demand an interpretational methodology inspired by and founded upon their personal choices in order to eliminate what they believe are the personal choices of judges. In the end, the essay seeks to prove that all constitutional interpretation requires human interaction with “Law.” Eliminating the human element from constitutional interpretation cannot be achieved. No rule no law stops judges from being human. And, even if that were somehow achievable, the Rulist goal of creating binding rules for the judciary, while leaving those with guns (the executive) and the power to take and spend money (the legislature) without similar rules creates an unbalanced and dangerous society, a society that brought us, for example, Jim Crow Laws, Black Codes, imprisonment for the crime of being of Japanese descent, the shooting of young adults at Kent State, and more, all of which are or were protected by “rules” such as (1) “separate but equal,” (2) deference to the discretion or policy choice of the “political branch,” and (3) deference to the “sovereign” states. Truly, judges will make human errors, even horrible ones, but so will the other humans that exercise governmental power. In the end, Rulists cannot avoid the truth of law, that law, as a human institution, must rely on faith in those who exercise judicial power. “We” can ask them to follow “discretion-cabining” “rules,” demonstrating faith in those judges who apply rules and faith in those (perhaps long-dead) judges who created the rules. Alternatively, “We” can demonstrate faith in those who announce the result of a decision and ask that they use reasoned analysis, relying on, inter alia, original intent, text, precedent and principle, but this need not be blind faith as “We” can read their analysis. “We” can have faith in the Law of Rules and what lies behind the curtain of rules. Or “We” can have faith in the justices “We” see and demand an explanation from them.
Available at: http://works.bepress.com/stephen_durden/14/