Archive for November, 2003…The post below. Unless you’re *really* curious about what I’ve been up to lately. I just wanted a backup in case an attachment I sent to my prof fails to render. Hey, happened to me before and I don’t want to take chances. Friends, please consume with scotch or whiskey. Lawyers, please be merciful. I’m just a miserable freshman. (An Engineerist Approach to Theories of Judicial Review) If the law is indeed not unlike an operating system, providing what could be the only scalable solution to the tragedy of the commons, then a survey of some of the more influential commentary on judicial review is a glimpse of the “core code”- the base architecture from which everything else is built upon. Or, to be more moderate about it, a nifty feature set responsible for output like Marbury v. Madison, Roe v. Wade, and Lawrence v. Texas. Hamilton’s pitch for a federal judiciary vested with the power of review is something an engineer or a programmer could relate to. Instead of basing the doctrine of judicial review on Lord Coke’s tenuous appeal to natural law and higher reason, Hamilton puts it forward as a concrete solution to the “unfolding defects of the existing Confederation”, a real-world requirement for a system predicated on popular sovereignty: That controversies, including those that involve the boundaries of coordinate branches of government, are settled peaceably, reasonably, and with finality—to resolve critical deadlocks and keep the system from crashing. Yet from a strictly functional, “engineerist” approach, judicial review is an anomaly in a system built upon the emergent consensus of a body politic’s majority: A minority of appointed, tenured officials reversing the action of popularly elected representatives is difficult to reconcile with the basic parameters of republicanism. Left unchecked, Bickel predicts that the contradiction will sap the marrow out of responsible representative democracy. Te very notion of a judge-constituted “guardian class”, no matter how enlightened that class may be, diminishes our individual and collective stake in the government as a common venture. With its legitimacy suspect (or at best merely implied) in a populist system, judicial review is to be used with restraint. As a court cannot save a society that has sunk so deep as to require saving anyway, the court should husband its power and prestige by steering clear of “dirty”, expediency-based policy determination. Instead, it should embrace passive virtues and stick to principled determination and reasoned, if not pedagogical elaboration for which it is best equipped. Rostow, thinking otherwise, maintains that democracy is a broad enough concept to afford a potent amount of discretion to unelected officials—judicial review included. The functional requirements of a democracy—that of maximizing freedom for individuals—should be the standard instead of any rigid formula for what constitutes a democracy. Some aspects of this requirement cannot be met by popular representation alone (minorities, out of state interests, etc.) These are often urgent requirements that could represent an escalating probability of systemic failure if they are not resolved in a rational manner. Rostow points by way of example that the courts’ forays into civil rights, rather than leading to a frustration and breakdown of society, actually restores its equilibrium through either its redistributive function vis-a-vis marginal groups, or its pedagogical ability to catalyze discussion and enlightenment among the majority. Having explored the outlines of the what and the why, the next relevant question is how? In what manner shall this elegant and terrifying prerogative be used? Thayer finds the answer in the power’s nebulous origin and contentious growth: Without the benefit of an explicit textual committment or a transcendent natural principle to justify its existence, judicial review is to be used sparingly: Only to the extent necessary to preserve rights in the face of a clear overstepping of constitutional boundaries. This requires standards of restraint and avoidance to prevent unnecessary friction with coordinate agencies: Standards like the assumption of legislative good faith, and deferring constitutional construction in favor of determining only whether or not a particular legislation is sustainable. Thinking along similar lines, Jackson emphasizes that the Court is essentially a conservative counterweight against the inherent dynamism of perpetual revolution via elections. To prevent the frustration, buildup, and violent outburst of that dynamism, Jackson espouses limiting the scope of judicial review to tactical, “legal” distribution of individual rights as opposed to broad policy determination more suitable to the legislative or executive. Herbert Wechsler, reacting to Judge Learned Hand’s thesis that a weakly justified power should be withheld by the discretion NOT to decide, counters by saying that judicial review is necessitated by the supremacy clause. With that textual commitment, the Court should adjudicate a constitutional case before it once it passes through the threshold requirements of standing, non-mootness, ripeness, etc. The only question is how. Decisions, according to Wechsler, must be principled—i.e. based on general reasons that look beyond immediate result. Not only does he buy the “separate is inherently unequal in public schools” ruling in Brown v. Board of Education, he is unable to find a neutral principle behind the Courts decision. Tentatively, Wechsler provides one for himself: that of “freedom of association”. However, such a principle would result in a paradox where “…integrated schools forces an association upon those to whom it is…repugnant.” Between imposing and denying association, he is unable to find a higher principle that would justify either. It is at this point that theories of judicial review come to a head with an engineer’s brutal pragmatism. The problem with using neutral principles is in choosing what principle (and its accessory values), gets to be the “superior one”, to the exclusion of others. The slippery slope is that the Court should apply that superior set of principles across the board, with factual circumstances a secondary consideration, and consequences a poor third. When Wechsler reduces Brown to a matter of principled decision-making, stripped of the historical context of slavery and discrimination, or considerations of the consequences of continued discrimination, there seems to be both practical and moral equivalence between segregation and integration. The urgency of discrimination as a real-world problem disappears behind the wand of logic. An engineer would realize that although pure structural consistency is desirable in the ideal, as a practical matter it is secondary. He would look for “good enough” in any solution, because he can ill-afford any ideological delusion attendant to having chosen the “right” principle. Solutions would have to involve real-world trade-offs and the rigors of real-world use. Push any parameter to ideal levels and the rest of the system unravels. The totally secure server is too slow. The totally safe building costs too much. The fastest airplane cannot land properly. The totally principled decision based on “freedom to associate” would not solve the real-world problem of under-representation of minorities in schools. When sea-changes occur, and challenges that are without precedents arise, how are neutral principles to cope? An engineerist approach based on consequences would at least be more willing to admit when it’s made a mistake, and then repeal a law or overturn a decision once it’s been found to be harmful. But if a legal system is based on neutral principles, change could only come through the discovery of higher, broader principles—which seem to be in short supply lately. Of course, this begs the question of what is considered “harmful” or “beneficial”. Fortunately, an engineerist approach does not need to find a higher moral basis to justify a particular configuration, including judicial review’s place in it. Suffice it to say that we as a society have chosen a certain basic set of standards for behavior by our citizens and will use the power of the state to impose punishment on those who violate those standards. The standards derive power from our collective decision to select them and our willingness to expend society’s resources to enforce them, thus they too do not require any reference to any kind of absolute standard. If any broader philosophy is needed, we have chosen such in our Constitution in terms of goals: The only question is whether or not the Court and the power of judicial review is a “good enough” solution for those requirements, overall. The Court, being only human, has certainly been susceptible to error. A long-term examination of its decisions would show that it has oscillated through various degrees of interventionism, moralism, even downright stupidity. It has, to its credit, been self-correcting and adaptive even without any neutral principles or absolute standards. It is that flexibility which allows judicial review—and our Constitutionalism as a whole—to remain a viable function amidst changing times. During the last day of classes I asked everyone to wear something spiffy. I brought the good old Nikon SLR and the tripod to do a “shoot”. I was particularly nervous about the finals, so I wanted to take pictures before the sem (which could be my last) ended. Check out the gallery. Not a lot of Kodak moments, I’m afraid. Law school is a pressure cooker. There is always the constant threat of botching a recit, crashing and burning in an exam, or getting drowned in the flood of readings. There is almost always little time for anything else. So when we do find a gap to breathe in, the sudden drop in pressure causes mirth to bubble out like uncorked champagne.
The parties are always a riot. We eat and drink like there’s no tomorrow, and then we laugh ourselves belly-achin’ crazy. The humour is as varied as the people present, but several themes are persistent: 1) Botched recits that are funny in hindsight (It helps us move on), 2) The idiosyncracies of our professors and 3) The absurdity of the law itself. We talk about our lives before law school and the choices that led us here. We talk about plans should we survive. We talk about our brilliant, principled lawmakers.
We celebrate birthdays with a burning fervor, or at least make sure that “Happy Birthday” is sung in the most embarrassing situation possible.
It’s a shame I wasn’t able to attend as many parties as I wished I could (I don’t have my own ride, plus I live in a church—strict curfew and all.) Maybe I should start looking for a better crib. I owe it to my readership to be in piss-drunk situations Now this is interesting. An edited version of my professor’s article on the impeachment was published two days ago in the Inquirer. Since this site is one of the few authorized channels through which the article may have found its way to print, I think I owe it to everyone to publish this clarification from my prof: ************************************* 3 November 2003 Last Friday I went to our regular meeting in Bantay Katarungan with a special interest in mind—to know what you were about to say, as amicus curiae, on Wednesday’s oral arguments before the Supreme Court in regard to petitions that have been filed questioning the constitutionality of the impeachment proceedings now pending against the Chief Justice. I came there with fresh memories of your initial reaction to my views during our conversation last week in your office. You considered my position on the matter impractical. You even said that I was dreaming and that I should consider running for Congress so I would have some idea of how these people think. I would have wanted to argue with you about your assessment but I decided against it as you seemed quite agitated at the time. I was therefore surprised when you told me and the volunteers that you have yet to finalize your statement for the oral arguments. I was even more surprised when, after I reiterated my concerns about the Court deciding this controversy, you did not react the way you did last week but simply kept your peace. But I was most surprised when you said that you were not even sure about appearing on Wednesday, as you have already declared your position during the Bantay Katarungan press conference where you argued that on the basis of documents in your possession you think that the Chief is innocent. As I see this development as a sign that you are re-thinking some of your views, I hope you would allow me to articulate further my position if only to show what I think is the most important role that only you and Bantay Katarungan could and should play in this present controversy. The Court should not exercise its jurisdiction in these cases. I have already stated my opinion on constitutional grounds. I now reiterate the same opinion on moral grounds and on reasons that are understandable to everyone. 1) THE MEMBERS OF THE COURT HAVE AN INTEREST IN DEFEATING THE IMPEACHMENT - That you believe that the Chief Justice is innocent because decisions regarding the JDF were “democratized” or coursed through several committees and the Court en banc only means that the members of the Court, should they decide this controversy, will be deciding a case in which they are indirectly, if not directly, implicated. That the justices ought to be impartial means that they should not decide a case if doing so will present to them an opportunity to justify their actions which are the very subject matter of the case. If the justices have recused themselves on less obvious grounds in other cases, I see no reason why they should not do so in this case. 2) THE COURT WILL LOSE ITS CREDIBILITY IF IT DECIDES THIS CASE - The Court cannot possibly convince anyone that its decision in this case, which I believe can reasonably be assumed to be in favor of the Chief Justice, will be based purely on constitutional grounds. No right thinking Filipino will accept the argument that any decision in this case will NOT take into consideration the justices’ relationship with their Chief, let alone their interest in justifying their actions regarding the JDF. Anyone with an elementary sense of fair play will not fail to notice that the justices in this case cannot act with a “cold neutrality of an impartial judge.” Indeed, the requirement, which the Court itself has stated over and over again, is not only that they BE in fact impartial; it is that they APPEAR to be impartial. Credibility is the most important capital of the Court in this controversy. That its opponents have none does not mean that it may lose its own credibility in its effort to defend itself. 3) I BELIEVE that the Chief Justice is innocent. I BELIEVE that the impeachment complaint was motivated not by a desire to promote public accountability but to promote the economic interests of some. I also AGREE with your evaluation of the documents regarding the Chief’s use of the JDF. But I do not agree that our moral approval of the justness of the Chief’s cause allows us to shortcut the democratic process. We cannot, in resolving this outrage, act in the same objectionable manner that the members of the lower House did. Otherwise, there would be nothing more to distinguish us from them. The argument against those responsible for the impeachment of Davide is that they are using the JDF issue as a ruse to oust the Chief Justice who has consistently decided against Cojuangco’s and the Marcoses’ interests. But can’t the same line of argument be used against the Court—that it will take advantage of the apparent constitutional issue as a ruse to support the Chief, defend itself, and stop the impeachment process? The best way to save the Court and allow it to maintain the high moral ground the Court, through the able leadership of the Chief, has already attained is to advise it of the impropriety of what it is about to do. I suspect, and it is quite possible, that Court has done what it has done partly because that may be the only way for the members of the Court to show in public their collective support for the Chief. It is our job then to tell them that their loyalty to the Chief should not supersede their loyalty to the very institution that they serve. It is our moral obligation to tell them that this is not the way to support the Chief. I therefore urge you to appear on Wednesday not to argue on the merits of the case—the other amici curiae can take care of that; I urge you to appear before the Court and speak on a more fundamental issue—the propriety of the Court’s exercising its jurisdiction in this case. I honestly believe that you are the only one who has the moral authority to enlighten the justices about the dangers in entering this political thicket. I also honestly believe that the advice that I ask you to give them is consistent with your own moral philosophy. I therefore ask you to urge them to be statesmen of the highest order. To be sure, it does seem painful to let go of an opportunity to resolve this controversy on “favorable grounds.” But doesn’t the philosophy of Bantay Katarungan require us to take the stand that I advise? Should we not impose the same moral standards on the justices simply because we believe them to be on the right side of the issue? We should keep in mind the judgment of history. I am confident that young Filipinos in the future reading the history of their country twenty or thirty years from now will find it astonishing that certain members of Congress had the temerity to impeach the present Chief Justice. They would find it comforting that there were a lot who expressed support for the Chief Justice. They would surely say that it was another test of our young democracy. But I am not sure what they would say if they learned that the controversy was resolved by the justices whose actuations were the subject matter of the controversy. I am not even sure if I can predict how the controversy was ultimately resolved. Before, I thought that the role you and Bantay Katarungan will play in this whole affair would be to take part in gathering public support for the Chief because we believe that his impeachment is unfair and that he is innocent. But now I see that the part we are to play in this mess, we have not yet performed. In the ultimate analysis, I think that our actions in this tragedy will simply be reflective of the extent of our faith in the democratic process; and the test of that faith will depend on whether one’s belief in the justness of a cause is a license to adopt any means to promote that end. Very truly yours, Florin ************************************* Watched The Matrix: Revolutions last night, then registered for the 2nd semester today. Time to move on. At least until The Return of the King comes to theaters. After all the waiting and the overanalyzing, The Matrix movies finally wrap up. Although the first is still the best for me, Revolutions was still a treat. It managed to salvage the franchise from Reloaded. Enough issues were settled to create a satisfactory ending, yet enough questions were left hanging to sustain the mythos. Mark has an extensive review here. Talk about wrapping up. I am going to post the last two installments of our matrix-themed posts on the 1st sem this weekend. Registration was surprisingly easy—everything took less than an hour. If you are/were a UP student, you’d probably be shocked at this. Registration is usually a long, tedious, contentious process. But it looks like the usual rules do not apply to the College of Law: We have a relatively smaller student population (and still shrinking, due to mortality rates), and we have a block system in all year levels. Thus, most of our courses are not scant resources to fight over—but exquisitely prepared deathtraps just waiting for us. |
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