FEDERALIST #37

For the sake of a little sanity on the judicial nominations front, I wish that Federalist #37 were as canonical as Federalist #78. Here's a crucial passage from the former, with emphasis added:

When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.

This passage raises questions both for Republicans who decry "legislating from the bench" and for certain kinds of political scientists who argue that all judicial decisionmaking is really akin to legislative policy-seeking. Madison wants to argue that there are specific characteristics of judging, legislating, and performing the functions of the executive, but that there will always be a certain indistinctness surrounding them because, as he later notes, these functions are not naturally occuring objects, because humans have a basic difficulty understanding human things (especially, one might add, collectively, in the forum of political contestation), and because language is imprecise. The categories are not wholly indistinct, as hard-core legal realists seem to argue. Moreover, sharp, noncontroversial delineations are impossible, contra the polemical Republican line-drawers. And the authority for this sensible claim comes from an influential framer himself.

Add Darwininan understandings of the fluidity of the natural world, and you can complicate the picture even more, but that's a bigger story.

I'm definitely assigning Federalist #37 from now on.