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?