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How Judges Decide: James Wilson's Theory of Constitutional Interpretation Geena Bournazian

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How Judges Decide: James Wilson's Theory of Constitutional Interpretation Geena Bournazian Bridgewater State University Virtual Commons - Bridgewater State University Honors Program Theses and Projects Undergraduate Honors Program 4-9-2014 How Judges Decide: James Wilson's Theory of Constitutional Interpretation Geena Bournazian Follow this and additional works at: http://vc.bridgew.edu/honors_proj Part of the Political Science Commons Recommended Citation Bournazian, Geena. (2014). How Judges Decide: James Wilson's Theory of Constitutional Interpretation. In BSU Honors Program Theses and Projects. Item 43. Available at: http://vc.bridgew.edu/honors_proj/43 Copyright © 2014 Geena Bournazian This item is available as part of Virtual Commons, the open-access institutional repository of Bridgewater State University, Bridgewater, Massachusetts. How Judges Decide: James Wilson’s Theory of Constitutional Interpretation Geena Bournazian Submitted in Partial Completion of the Requirements for Commonwealth Honors in Political Science Bridgewater State University April 9, 2014 Dr. Jordon Barkalow, Thesis Director Dr. Kevin Donnelly, Committee Member Dr. Mark Kemper, Committee Member ACKNOWLEDGEMENTS: This Honors Thesis is the culmination of my undergraduate research and studies. The journey to completing this project has helped develop my skills as a student researcher, and I am happy with the finished product. Looking back from the beginning of this journey, there are certain people who deserve an acknowledgment and a sincere thank you. A quote that has kept me motivated throughout my research, from me to you: “Knowing is not enough; we must apply. Willing is not enough; we must do” (Johann Wolfgang von Goethe). Dr. Jordon Barkalow Dr. Jennifer Mogg The Office of Undergraduate Research Adrian Tinsley Program Kathy Frederick Jonathan Savage Patricia Sampson Paul & Eric Bournazian Godric & Hope TABLE OF CONTENTS CHAPTER ONE: INTRODUCTION….....…………………………………………......... 1 Hadley Arkes, Robert George and Natural Law…………………………….……….. 4 Randy Barnett and Natural Right …………………………………………………… 13 James Stoner and the Common Law …………………………………………………18 Chapter Overview ………………………………………………...…………………. 24 CHAPTER TWO: JAMES WILSON’S THEORY OF POPULAR SOVERIGNTY….. 26 Sovereignty as a Multi-Dimensional Concept ………………………………………. 28 James Wilson: Principle Sovereignty ……………………………………………….. 35 James Wilson: Derived Sovereignty ………………………………………………… 42 Conclusion ……………………………………………………………………………53 CHAPTER THREE: JAMES WILSON ON JUDGES AS AGENTS-PLUS….………. 57 Judges as Agents ………………………………………………….…………………. 59 Judges as Representatives …………………………………………………………… 63 Judges as Educators ………………………………………………………………… 71 Discussion ………………………...…………………………………………………. 78 CHAPTER FOUR: RONALD DWORKIN AND THE MORAL READING …….…… 83 Dworkin’s Moral Reading ………………………………………………………..…. 85 The Moral Reading in Practice ……………………………………………………….91 Dworkin on Originalism ………………………………………………………..…….95 Wilson and Dworkin …,.……………………………………………………………. 101 CHAPTER FIVE: CONCLUSION ………………………………………………………. 111 Chapter One: Introduction Constitutional law scholars are in general agreement that judges, when interpreting the Constitution, apply reasoning not explicitly found in the Constitution. However, where these scholars disagree is over what types of reasoning or bodies of thought judges should apply when rendering their decisions and interpreting the Constitution. This introduction takes up their competing arguments.1 First, writers like Hadley Arkes and Robert George argue for the natural law interpretation of the Constitution, which requires judges to focus on the substantive moral reasoning that defines right and wrong in a particular case. In doing this, judges would have recourse to the principles of natural law when making these decisions. The purpose would be to connect the natural law with constitutional law. Second, there is the natural rights argument. Randy Barnett, a natural rights scholar views the responsibility of judges in terms of protecting the inalienable rights individuals have, preceding the formation of government. In order for the law to be legitimate and morally binding, the government must provide adequate procedures for the protection of these rights. Where the natural law argument requires judges to articulate principles of how one ought to live, the natural right argument turns its attention to government and requires judges to assess the propriety of restrictions placed on individuals by government. The natural law tradition believes there is a correct choice. The theory of natural rights focuses on the ability of individuals to make these choices for themselves. Finally, the common law approach emphasizes that judges operate within a legal framework where they are to make their decisions on important legal questions with a heavy reliance on precedent. The common law approach is represented by the writing of James Stoner, who believes the common law approach is distinguished from the other two alternatives because of its reliance on prudent choice. 1 The fourth argument, that of Ronald Dworkin, is addressed in the fourth chapter of this thesis. 1 This thesis pursues the larger question of how judges should make decisions through an analysis of the political and legal writings of James Wilson. In particular, the following research question is addressed: In what manner and to what extent does James Wilson provide a theory of Constitutional interpretation? Wilson is of particular interest for the topic of constitutional interpretation because all three schools of constitutional thought claims ties to Wilson. In addition, he is one of six men to sign both The Declaration and the Constitution, making him a very influential and important founding father. However, Wilson is often forgotten amongst the other Founders. Serving as one of the first Supreme Court Justices, his ideas on constitutional interpretation can help unlock the many ambiguities the Constitution contains in order to help modern judges answer important constitutional questions. The thesis of this research is that Wilson provides a democratic theory of constitutional interpretation that combines natural law and natural rights principles on a scientific foundation. This paper specifically focuses on Wilson’s view of the role of a judge, and how judges should make their decisions. In pursuit of this question, I employ the method of textual analysis recommended by Leo Strauss (1988). Strauss’ method of textual analysis focuses on understanding past thinkers as they understood themselves. This analysis requires three tasks of the researcher. The first is that one must suspend their own opinions and questions in order to better understand the thought process and inquires of the author. The second is that one is to rely, as much as possible, on what the author says directly and indirectly. It is important in this step not to make assumptions or to inflate unnecessary information with more meaning that is originally intended. The final task is that one should use the author’s words directly when possible, and not rely on secondary sources. The use of Strauss’ methodology has been used on previous studies of James Wilson which justifies its use here (see Valesquez 1996; Zink 2009). 2 This chapter examines the three different schools of constitutional interpretation so that they can be understood and applied to James Wilson’s own writings. The first section of the literature review focuses on the natural law theory. Here, Hadley Arkes provides a theory of constitutional interpretation that does not focus on the strict interpretation of the text, but focuses on interpreting the “spirit” represented in the Constitution. Arkes argues that judges should look to moral principles to help in this interpretation. Robert George agrees that judges should have recourse to moral principles when interpreting the Constitution, but differs from Arkes on originalism. For Arkes, if a judge recognizes a bad law, the judge should declare it unconstitutional. George disagrees, placing this duty in the hands of the legislature to apply the natural law when creating the laws. For George, if a law is bad, the Court should ignore it if it is not within their grant of power. The second section examines the natural rights theory through Randy Barnett. Barnett believes the role of a modern judge has degenerated from its original purpose. He believes that if judges had recourse to natural rights when making their decisions, they would be more effective in preserving the integrity of the Constitution. According to Barnett, if a law is not supportive of the natural rights of an individual or of a group of individuals, then it is not legitimate. This illegitimacy, for Barnett, allows individuals to disobey the law because it is not morally correct. Barnett also supports originalism, specifically the original meaning interpretation of the Constitution. The implications this has on his overall theory of constitutional interpretation will be discussed in this section. The last section examines the common law theory through James R. Stoner. According to Stoner, judges using the common law theory of constitutional interpretation are required to make decisions based on prudence and precedent, focusing specifically on the English common law. The common law is adaptable, and therefore is able to form to the needs of each new generation. This is good in the 3 sense that the common law is flexible and fits the people, but bad in the sense that it can create instability through frequent changes. This tension will be further analyzed in the last section.
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