Episode 117: Judicial Review in an Objective Legal System (with Tara A. Smith)


Trevor Burrus: Welcome to Free Thoughts from
Libertarianism.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.Libertarianism.org

One comment

  1. Very pleased to have accidentally 'run into' Tara Smith again. I took her undergraduate philosophy of law course at UT of Austin. I was the only one in the class making the anarchist/libertarian case in the class and everyone thought I was crazy or just didn't care and wanted only to get on with their day. But, I appreciated Tara giving me support in the class. Of course it wasn't to much of a leap for her since the texts we read were essays from Ayn Rand and Randy Barnett. The class struggled to pin down her politics and no one could quite guess (too many stuck in the false left/right dichotomy). I suggested she was a libertarian and hardly anyone at the time knew what that was. This was around Ron Paul's last presidential campaign. Anyway, just wanted to share my experience in Tara Smith's class and express what a delight it is to bump into her again on one of my favorite libertarian philosophy websites. Cheers!

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