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[NB: This post has been restructured with some additions]
In a previous thread, Imran argued that Madison was a legal progressive.
First, we need a definition of the term "legal progressive." The definition I put forward is as follows:
So now it falls to you, the reader, to determine whether Madison's writings reveal support for any of these views. As "evidence", Imran put forward two documents.
- Federalist #37: A political pamphlet written by Madison under the pseudonym Publius (discussed below); and
- Another quotation, which appears in a letter from Madison to Henry Lee, dated 1824. The full text of this very short letter is here. The quote as it appears here is somewhat longer than Imran's.
As can be seen, nowhere in the text of this passage does Madison support any of the views to which Imran adheres, as defined above. In fact, Imran later conceded as much. He stated that he was "reading into" this quotation that which Madison wrote in Federalist #37.
In other words, as none of the propositions Madison discussed in this quotation supported his argument, the quotation itself did not help his argument at all. Still, if only Federalist #37 did, this quotation would (according to Imran) espouse a "progressive" point of view.
What Madison states in Federalist #37 is that there are, in England, conflicting sources of law (common law, statute law, and so forth), and that it is often difficult to discern what the boundaries between them are. There is no doubting that the law can sometimes be unclear, and a written Constitution like the American Constitution is a prime example. But of course that is true of every law.
However, it does not follow that the law is always unclear. A law can have a clear application with respect to one circumstance which its drafters foresaw. And when it does, judges are bound to apply and respect the law. The only room for judicial "law-making" is when there are unforeseen (and ambiguous) consequences with respect to another. Those "laws" should not be seen as anything but what they are: stop gap measures designed to resolve legal disputes between litigants in a certain, uniform and consistent fashion.
Let's be clear: legal progressivists argue that the clearly intended and expressed consequences of a law should be ignored to suit themselves and their politics. Progressivists argue that even if the law provides a clear answer to a legal question, that answer is irrelevant. They argue that the real answer lies in their own political preferences. And that is an end to the rule of law.
Once again, Imran has cited Federalist #37 but hasn't bothered to make his case.
In a previous thread, Imran argued that Madison was a legal progressive.
First, we need a definition of the term "legal progressive." The definition I put forward is as follows:
1. That it is for the judiciary to amend the meaning of a statute as it pleases.
2. That it is for the judiciary to ignore the established meaning of a statute if a new meaning is "preferable", in light of "societal progress." (The Constitution "lives and breathes.")
3. That it is for politicians to appoint judges who agree to change the law to suit the politics of the politicians in question. This follows from the first and second premises. Judges are appointed (in the US) by the President with the assent of the Senate. It falls to these institutions, therefore, to determine the competency of a judge.
Thus, if we accept the premise that laws are made via the democratic means prescribed in the Constitution, then it follows that laws have the meaning they possessed on the day they were enacted. So in appointing a judge, the President and the Senate must determine that the judge has a sound understanding of the legal, societal and historical context in which the Constitution was enacted and amended, and that the judge intends to interpret the Constitution accordingly.
If, however, we accept the premise that judges may discern if and when "societal progress" has rendered the laws assented to by the people irrelevant, then it follows that it is for the Senate and President to appoint a judge whose view of society's "progress" comports with their own.
2. That it is for the judiciary to ignore the established meaning of a statute if a new meaning is "preferable", in light of "societal progress." (The Constitution "lives and breathes.")
3. That it is for politicians to appoint judges who agree to change the law to suit the politics of the politicians in question. This follows from the first and second premises. Judges are appointed (in the US) by the President with the assent of the Senate. It falls to these institutions, therefore, to determine the competency of a judge.
Thus, if we accept the premise that laws are made via the democratic means prescribed in the Constitution, then it follows that laws have the meaning they possessed on the day they were enacted. So in appointing a judge, the President and the Senate must determine that the judge has a sound understanding of the legal, societal and historical context in which the Constitution was enacted and amended, and that the judge intends to interpret the Constitution accordingly.
If, however, we accept the premise that judges may discern if and when "societal progress" has rendered the laws assented to by the people irrelevant, then it follows that it is for the Senate and President to appoint a judge whose view of society's "progress" comports with their own.
- Federalist #37: A political pamphlet written by Madison under the pseudonym Publius (discussed below); and
- Another quotation, which appears in a letter from Madison to Henry Lee, dated 1824. The full text of this very short letter is here. The quote as it appears here is somewhat longer than Imran's.
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founder, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.”
In other words, as none of the propositions Madison discussed in this quotation supported his argument, the quotation itself did not help his argument at all. Still, if only Federalist #37 did, this quotation would (according to Imran) espouse a "progressive" point of view.
What Madison states in Federalist #37 is that there are, in England, conflicting sources of law (common law, statute law, and so forth), and that it is often difficult to discern what the boundaries between them are. There is no doubting that the law can sometimes be unclear, and a written Constitution like the American Constitution is a prime example. But of course that is true of every law.
However, it does not follow that the law is always unclear. A law can have a clear application with respect to one circumstance which its drafters foresaw. And when it does, judges are bound to apply and respect the law. The only room for judicial "law-making" is when there are unforeseen (and ambiguous) consequences with respect to another. Those "laws" should not be seen as anything but what they are: stop gap measures designed to resolve legal disputes between litigants in a certain, uniform and consistent fashion.
Let's be clear: legal progressivists argue that the clearly intended and expressed consequences of a law should be ignored to suit themselves and their politics. Progressivists argue that even if the law provides a clear answer to a legal question, that answer is irrelevant. They argue that the real answer lies in their own political preferences. And that is an end to the rule of law.
Once again, Imran has cited Federalist #37 but hasn't bothered to make his case.
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Says the person assuming the truth in the premise.
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