A Thought Experiment: "Judge-Made Law" and Habeas Corpus

It is my contention that people who suggest an argument should feel themselves obliged to live by an argument. In particular, I think this should govern those who claim for themselves the privilege of deciding what the rights of others might be.

Therefore, as regards Constitutional law, I want to propose a small thought experiment, which I am hoping that the strict constructionists on this board will join in, in the spirit in which it is proposed.

As a strict constructionist, who believes that “judges should interpret law, not make law,” therefore, suppose yourself to be put in a position of being held **quasi-**incommunicado. For some reason, you have been permitted access to this board, and can seek assistance in preparing your argument through it. But your privilege of public discourse has been suspended, by whatever nefarious means you wish to hypothecate

Your rights to procedural due process are guaranteed. Not substantive, of course; that idea is anathema to any strict constructionist (except Kenneth Starr). But you can recover your right of public discourse by a simple means: You must prepare an argument stating that you have been improperly deprived of it, and present it to the judge.

However, your judge is a man who is a stickler for proper procedure. It is not enough to cite precedent to him; he requires the cite of statute. He will hear your argument under the writ of habeas corpus, but has rejected your petitions to date. Even citing the constitutional guarantee that the Great Writ will not be suspended does not faze him. He is requiring that you cite the statute creating the Writ of Habeas Corpus … not a statute or constitutional provision recognizing it, but the original statute which created it.

Obviously, you cannot do this. The Great Writ is a product of the Common Law, not of statutory creation. But your judge holds to the idea that only the legislature may create law; all he can do is interpret it. And habeas corpus is judge-created law.

This strikes at the basis of rule by law, in my opinion. The Great Writ is the guarantee that every man has the right to hear his argument heard by an impartial judge, and that no one may deprive him of this right. But it is, at rock bottom, a rule created by a judge, back in the mists of time, not a statutory or constitutional right.

It may, of course, be argued that the Writ of Habeas Corpus has the patina of time and custom on its side, as the “right of privacy” or some of the other unenumerated rights recognized by the courts do not. But this is in my mind not a valid argument: the law is the law. If it is improper for a judge to “make law” today, it was equally improper for them to do so in the time of the Common Lawyers. And if it was right then, that propriety has not been vitiated by time.

So, strict constructionists, clarify: When is/was it proper for judges to make law? What ended that proper time?

In Virginia, the answer may be found in Va Code § 1-200, which provides that the common law of England at the time of the adoption of the Virginia statutes, continues in full force except as subsequently altered by the General Assembly.

So in Virginia, the use of judge-made law created up until about 1750 was and is legitimate… because that’s what our statutory law says.

Interestingly enough, Virginia also specifically incorporates the right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, to the extent such writs are not in conflict with the statutory law. See Va Code § 1-201.

Great idea. I think that we should start by taking the mansion of every Supreme Court justice that upheld New London, Conn.'s right to emanate domain and turn it into a Wal-Mart.

I did not explictly address this point before…

Not so. It was perfectly proper for judges to make law in Merrie Olde England. There, sovereignty was held by the monarch, and the judges created, interpreted, and enforced the law at his or her pleasure. If we lived in a monarchy today, I’d have no problem with judges making law.

But you may recall a bit of unpleasantness in 1776. One of the results of that was that we established a system of self-governance, with sovereignty vested in the people. We created an elected legislature to make the law. At that point, judge made law was no longer appropriate. We adopted the existing common law – explicitly, by act of legislature.

Whoa, there, Bricker, methinks you are letting your point ride ahead of the facts.

First, I do not recall from the Federalist Papers or indeed from any reading of Revolutionary-era US history that the FFs had any problem with the English common law system or judge-made law.

Second, England, of course, also had an elected legislature to make law.

Third, judges in Merrie Olde England had (and have) the exact same role US judges have - to fill in the interstices of the law and to determine the application of the law passed by the legislature to the messiness of real life.

Fourth, it has been a recent development in US legal history that we have had an avalanche of legislation. Until about the fourth decade of the 20th Century, judges “made” the majority of the law in the US, as legislation was relatively sparse and broadly drawn.