Judge John T. Noonan of the 9th Circuit, speaking at Dartmouth (link via Howard Bashman):
Judges should look at the “spirit” behind the words of the Constitution rather than interpreting its language literally when ruling on cases, Judge John T. Noonan argued Monday in his lecture, titled “Reading the Constitution.”
Noonan, a judge on the activist, San Francisco-based Ninth Circuit Court of Appeals and the author of a book about the First Amendment, compared interpreting the Constitution to interpreting religious texts and argued against literal readings of the country’s arbiter of legal judgment.
“The main problem with written text is fundamentalism — taking certain words and treating them as decisive,” Noonan said.
Too many judges, like Justice Antonin Scalia of the Supreme Court, treat the Constitution like the Bible, Noonan said….
Noonan seems to imply that only religious liberals (or liberals who are not religious) are fit to be judges. And in the Noonanian universe, it is only judges who matter. What legislators legislate or constitutional framers frame is of little import.
According to Noonan, every working judge has come to the conclusion that “he who interprets the law, makes the law” and that interpretation gives the Constitution vitality.
I doubt that “vitality” is the word I would use, but it’s easy to see how a Constitution whose meaning is not bound and restricted by the words it comprises is a much more powerful document, and why the judges who, on this view, possess the only workable key to its meaning rather like the power. Perhaps we should refer to Judge John Noonan as Pope John.
Well, we already know how the Supremes “interpreted” Congress Shall Make NO LAW…..
And how dare he bring religion or compare the Constitution to a religious text.
Judge Noonan is a dangerous man. He’s basically advocating an imperial judiciary.
How delightfully Soviet of him!
Keep in mind that Judge Noonan is a conservative, appointed to the 9th Circuit by President Reagan, largely because of a book he wrote back in the late 1970’s criticizing the Supreme Court’s abortion decision. He simply doesn’t agree with the conservative activism of Scalia and of Thomas’s law clerks any more than he agrees with liberal activism. Instead of bashing Noonan, you might want to read his excellent book “Narrowing the Nation’s Power.”
“The main problem with written text is fundamentalism — taking certain words and treating them as decisive,”
I’ll bet Noonan thinks any ruling from his bench should be decisive. I wonder how he would react if the prosecutors and the defendants before his court used the same exact argument – that his rulings are “too decisive” and should therefore be ignored or interpreted as they see fit. We would have chaos.
Mark – Actually, I have read Noonan’s book. It’s not bad, but it doesn’t shield him from criticism, even mine. The fact is that his view of judges as priests empowered not to interpret but in effect to write legal texts is the essence of judicial imperialism. It is neither conservative nor liberal, or rather can be either, and thus the fact that Noonan was appointed by Reagan is not really relevant to the substance of my criticism.
There are a few bills in the Congress to restore some semblance of balance between the three branches of the federal government, including restricting the scope of the federal judiciary’s review power (as the Constitution allows the Congress to do). I say, a first (and very big) step ought to be to (1) abolish the ninth circuit and (2) expand other circuits to cover the ninth’s territory. This would be doubly beneficial: it would remind judges that they do not constitute a superior branch, and it would get some kooks off the federal bench, too. :-)
Making law or interpreting law
Every now and then someone says something that just blows your mind. For example, consider Judge John T. Noonan of the 9th Circuit, speaking at Dartmouth:Judges should look at the “spirit” behind the words of the Constitution rather than interpreting i…
I thought one of the true horrors of 1984 (The book) was New Speak. Peace is war, etc.
If words don’t mean anything, how can we communicate?
Why write any laws, why not just have judges decide eveything based on their whims?
Didn’t Confucious, who developed a certain following, make rectification of names a principle activity?
Wasn’t it Solzhenitsyn who commented on the terror of living in a country without an objective legal standard?
Judges like these should be removed from the bench as soon as possible.
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I am shocked and surprised by Justice Noonan’s views…he wrote an EXCELLENT book slamming Roe V Wade back in the late 70s called A Private Choice:Abortion in America in the 70s…which put forward the idea that States should have the power to treat abortion as a form of infanticide and that the Supreme Court erred grievously in not allowing them to do so….What he is advocating is just the kind of judicial imperialism that gave us the disatrous Roe….