Sunday, July 21, 2013

Judicial Activism and Nazi Germany

Justice Scalia reportedly credited "judicial activism" of the style he attributes to modern liberals as being a driving force for the Holocaust.

This is an interesting critique less because of its inflammatory nature, or even because of its hypocrisy given the highest profile SCOTUS case of the last term was the notably originalism-less Shelby County decision, and more because of how it clashes with prior contributions to the "your preferred school of judicial interpretation is responsible for the rise of Nazism" school of critique. The most famous of these was the argument by natural law scholars (such as Lon Fuller) against legal positivists (such as H.L.A. Hart). A key point of disagreement between the two was whether an immoral "law" truly could be considered law. Fuller said no, while Hart contended that Fuller's position mistook what the law ought be from what the law is. Fuller rejoined that it was this outlook that allowed Nazism to be sanctioned by Germany's judiciary, as they felt obliged to follow the law as written.

I'm not saying I side with Fuller in this debate. I only observe that historically, the criticism leveled at WWII German jurists was not that they were too willing to adopt contemporary standards of "moral authority", but rather that they were too content to apply the law as it was written and understood by those who drafted it. Justice Scalia's argument is, to my knowledge, a distinct outlier and I'm curious to know what support, if any, there is for his position.

1 comment:

PG said...

Josh Blackman claims that Sunstein has made a similar argument.

But I think this misunderstands even what it quotes from Sunstein.

'They thought that courts could carry out their task “only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized.'

That sounds like original intent, not living constitutionalism. Also, the one-way ratchet toward greater liberty, despised by conservatives, makes Nazi Germany a fundamentally implausible outcome.