September 25, 2002

GEORGETOWN PROFESSOR PETER RUBIN says that strict constructionism doesn't constrain judges. This is, largely, true. In fact, I've written a couple of law review articles to that effect. (Links here and here).

That's not really an argument against fidelity to text and intent, though. It just means it's been oversold. Parchment barriers are of limited use in constraining federal judges. Character, as Jeff Cooper pointed out the other day, is more important. At any rate, where the federal Courts of Appeals are concerned, the real problem -- to paraphrase Michael Dukakis -- is not ideology, but competence, and a bureaucratic mindset that does more harm than ideology.