Sunday, 23 August 2009

The Fundamentalist, the Traditonalist, The Activist

In conjunction with Supreme Court Nominations, I wish to review and reiterate how certain ideologies impact judicial decisions.

The parallels to Halachah are obvious, nevertheless I will BEH articulate them in a followup post


Simply stated there are three main trends amongst Jurists (some say there are even more, but for simplicity we'll stop at three!

1 The Fundamentalist
2 The Traditionalist
3 The Activist

Disclaimer: Rare is the individual that adheres exclusively to these prototypes.

1 The Fundamentalist approaches law from the written text In the case of constitutional law the "original intent" is everything. Philology and a thorough knowledge of the framer's milieu is key.
Thus the USA constitutionality of a law is Judged by the framers of 1787 or its amendments by their respective eras.
Thus, nothing evolves.
Also individual laws are treated by how they are written. No accounting is made for subsequent changes in society or newer laws or interpretations. Nor is consideration made for the original IMPLEMENTATION of a law - only its original intent.

Illustration: The US first amendment can be seen as so strictly prohibiting religion from involvement with the government that prayer invocations and military chaplains must be unconstitutional, no matter what the history of how the Bill of Rights has been implemented

Bottom line: Adherents may be summed up as "Reactionary".


2 The Traditionalist bases himself on the legacy of the law. In the case of the Constitution - what is the HISTORY of the interpretations of the various courts. The key here is precedent and case law. This is closely parallel to the English concept of "Common "Law". Thus case law of the jurists trumps the original wording of any legislators.

Bottom Line: In addition to being traditionalists these are "Evolutionary".


3 The Activist

Here the law takes a back seat - usually to political correctness. Thus what chiefly counts is what social engineering is most desirable?

Do I want to see the most people Vote? Then strike down any law that restricts voting!

If I want to socially engineer integration - and not just remove segregation - I legislate busing from the bench.

In order to protect expectant mothers - I strike down laws designed to protect not-yet-born fetuses. And so it goes.

Bottom line: This approach exceeds evolutionary and approaches "Revolutionary"


Consider which position is the best?

Consider which position adheres to the "golden mean?

Which - if any - serves society best in the long run?


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