by Heng Ling, Ph.D.  (October 26, 2020, Denver)

The thesis of judicial originalism is that judges in the judiciary should just enforce existing laws according to their exact text instead of effectively creating laws, so called “legislating from the bench”.

Now, I am not trying to say that the judiciary does not HELP to enforce the law, and even enforce the law directly on occasion — like when bailiff put people in prison following judges’ orders.  Enforcing laws simply isn’t the primary job of the judiciary.  The Constitution actually devoted an entire branch of the US government to law enforcement, it’s called the “Executive Branch”.

So what is the judiciary’s primary responsibility?  Like the titles given to its people, the judiciary’s primary job is to judge: to judge whether laws are appropriately constructed, to judge whether the enforcement of laws are appropriately fitting to the laws, and finally judge how to apply existing laws to situations which laws do not cover.

Look, in cases when the applications of laws are obvious, competent lawyers would (and should) ask the court for “summary judgements”, requesting presiding judges to directly enforce laws without further considerations or trial.  Such requests obviously need to be judged, in theory based on how closely applicable the laws are.

The point is, in most judicial cases requiring significant attention and deliberation — both through arguments in courtroom as well as deliberations in judges’ chambers — the effort is spent on determining, i.e. judging, the applicability of existing laws, and, in cases when no laws are precisely applicable, how to apply the principles of existing laws.

It should be obvious that figuring out how to apply principles of existing laws to situations which existing laws do not cover appropriately has the same effect as legislating — assuming the results are respected by the people and the law enforcement as well as adhered to in future judiciary cases.  It goes without saying that judging a law’s construction to be inappropriate has the same effect as legislating to counter-mend.  In other words, other than judgements which promote precise application of existing laws, judges can not help but, effectively, “legislating from the bench”. One might even argue that some determinations which promotes precise applications of existing laws are also “legislating from the bench”.  

Sure, one may like some judges’ work better than others.  But face it, a form of “legislating from the bench” is what the judiciary is supposed to do. 

There is of course a significant difference between legislature and judiciary in this respect.  Whereas the legislature is only bound by the Constitution, the judiciary is bound by the Constitution and all other existing laws (and judiciary precedents) (with both) subjecting to the Constitution.  Hence, if the legislature does not like what the judiciary decided on situations existing laws do not yet cover, the legislature is empowered by the Constitution to create laws to cover them and more — overwriting the judiciary’s determinations if so desired.

So it’s high time to judge the judges by how (well, appropriately, effectively, etc) they “legislate from the bench”, and not the fact that they do “legislate from the bench”!  

And end the pursuit of judicial originalism once and for all!