Eric H. Zagrans starts the ambiguously-named Sixth Circuit Blog, which I imagine is going to have posts regarding court of appeals in a “previously unknown and unexplored land mass between the New York and California coasts known as the ‘Midwest.’”
His first substantive post links to a Federalist Society Article about the Ohio Supreme Court, which concludes that in some eras it was “policy-making” and “activist” and in some eras, it was not. You can read what I think, if you want.
I, for one, am curious and confused as to whether the whole distinction between “law” and “policy” started. Indeed, looking at the US Constitution, I probably could cast every single provision in it as a statement of policy. For example:
1st Amendment: The nation’s intellectual and spiritual health will be better served by keeping government out of the church and the newspaper, and letting theological and journalistic 1000 flowers bloom.
2d Amendment: State militias are the last defense against federal tyranny. (Or, if you prefer, the personal right to bear arms, is the last defense against ANY government tyranny.)
3d Amendment: Under normal circumstances, the military should enter into contracts on the free market for barracks and other housing, and shouldn’t use peoples’ homes. In an emergency, following a bunch of formalities, they can use them.
4th Amendment: People are happiest, and therefore the country is happiest, when they have freedom to do what they want in their own homes. In an emergency they can seek approval from a judge, or judge-like creature.
and on and on...
Most people agree that the Courts can and should “interpret” a constitution. But, in a case involving a government entity, and interpretation that in any way second-guesses executive or legislative action will be “making” policy, simply by “changing” it.
Looking at things historically, there is even less of a divide between “policy” and “law.” Many state legislatures did judicial things. Many times has the executive branch attempted to override the judiciary (sometimes successfully). Indeed, going back to Ye Olde England, judges were considered to actually be making the law, or at least figuring out just what this “common” law was, anyway.
So, this is what I would like to see: a falsifiable definition of “policy.” This definition should not overlap with a falsifiable definition of “law.” Once we actually get this nailed down, I think the discussion on what is purely the domain of the courts and what is the domain of the legislature would go a lot smoother.