On Legal Formalism
Legal Formalism is a doctrine that reflects the wishful thinking of many legal theorists that judges should apply law in a sort of mathematical fashion without any regard to “real-life” normative or policy issues. (I think, in this country, Langdell was the originator of the formalistic school of thought in jurisprudence.)
Anyway. Under the doctrine, the judges should not concern themselves with whether the law is good or bad, just or biased, sound or nonsensical - all those issues are for the legislatures to decide. The idea is that a law should yield an unequivocal decision regardless of the substantive nature of the underlying fact pattern. There are many proponents of this doctrine, as well as many opponents (I, personally, happen to belong to the opposing camp) - but this post is really not about the merits of legal formalism, but rather about Supreme Court Justices hiding behind it, whenever they chicken out of truly addressing the issue before them on its merits.
For example, in Gonzales v. Raich (2005), observe Justice Stevens resorting to legal formalism in ruling upon an issue that is clearly about the right of gravely ill persons to, legally (under the state law) receive their medicinal marijuana without harassment by federal agencies:
“The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case.”
Hey, it’s just about the blind application of the Congress’ power to regulate interstate commerce, right? As a legal formalist would put it, clearly the Controlled Substances Act legitimately has that power - and that’s all that matters - how that power is applied is beyond the scope of the judiciary. Notice how under Justice Stevens’ approach, the “case is made difficult by respondents’ strong arguments” - meaning, how strong real-life arguments of real-life respondents interfere with his structurally sound, aseptic interpretation of the issues. Well, lets consult the dissenting opinion by Justice Thomas:
“On this traditional understanding of “commerce,” the Controlled Substances Act (CSA), 21 U.S.C. ยง 801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market — intrastate or interstate, noncommercial or commercial — for marijuana. Respondents are correct that the CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.”
Hmmm… Now we have two eminent legal minds, one ruling that the CSA is within the commerce clause’ power to regulate interstate commerce; another saying that it isn’t. Under the perfect conditions envisioned by the formalistic doctrine, it isn’t supposed to happen. Seems like either the Controlled Substances Act is deficient, the Justices understanding of the formalistic approach is lacking or Legal Formalism itself is faulty. It could be all three are correct. It doesn’t really matter - after all, hiding behind a questionable doctrine to duck important issues is a dubious tactic all in itself.
admin :: Jul.03.2007 :: Legal Issues, Rants :: No Comments »