Wednesday, March 18, 2009
Douglas E. Edlin (Dickinson Poli. Sci.) recently published Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review with the University of Michigan Press. I look forward to reviewing and recommending it in greater detail here soon, but in the meantime here's part of a Q&A with Edlin:
Why does it matter that judges must choose between moral and legal obligations?
Edlin: It matters because if judges act only out of a moral obligation, some people might say that they are no longer acting as legal officials. If judges act out of a legal obligation, then their actions remain within their judicial responsibility and authority.
Where do you see this all playing into the future of law?
Edlin: We see some of it playing out right before our eyes. Judicial decisions about the availability of habeas corpus, for example, for people held at Guantanamo Bay, contain discussions of the meaning of that right constitutionally and at common law. And these discussions, sometimes explicitly and sometimes implicitly, address the role and authority of the courts in a manner that touches directly on the analysis in the book.
Will these issues be addressed under the new administration?
Edlin: They already are. President Obama’s executive orders eliminating secret prisons, coercive interrogation practices, and (in the future) the Guantanamo detention facility itself are examples of his belief that our existing constitutional and legal principles are sufficient to address the threat of terrorism (and that these principles are, at least in his view, inconsistent with the existence of prisons, practices and facilities of this sort).
I highly recommend this.