One difficulty in discussions about the originalist approach to the law is a failure to distinguish properly between what the law is and what the law should be, or, in other words, between law and policy.

Many people, I think, approach the work of the court as if it were the job of the court to make decisions on the basis of what the law should be. For example, Erwin Chemerinsky (dean of the Duke Universtity School of Law) criticized Justice Thomas, because Thomas believes that it is permissible under the Constitution for a state to establish a religion. Chemerinsky, rather than offering an analysis of Thomas's reasoning, offered instead as his critique that he doesn't want to live in a country where a state could establish a religion by legislative act. (Interview with Erwin Chemerinsky,Hugh Hewitt Show (2d Hour), 27 June 2005.) That's all well and good, but notice that he doesn't offer an analysis of any passage in the Constitution; there is no legal analysis. What we get is the mere assertion that he doesn't want to live in a country where a state could establish a religion. He doesn't lead off with an assertion that the Constitution actually prohibits a state from doing this. For him, the first question is not, "What is the law? What does the Constitution say?" No, the first question for him is, "What should the law be, in order to be satisfying to me?" That is a policy question, not a legal question. And it is for legislatures to answer policy questions; it is for courts to answer legal questions.

I wonder how Justice Thomas could have such a silly idea as that a state may establish a religion by legistlative act. Could it be because the Constitution says, in relevant part:

Congress shall make no law respecting an establishment of religion.... (Amendment 1)

Being an originalist, and applying the grammatico-historical method of document interpretation, Justice Thomas no doubt notes that the subject of the above sentence is Congress. It is Congress, not a state legislature, which is prohibited by the Consitution from making a law establishing a religion. Given the Tenth Amendment's asserton that

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people

Thomas clearly believes that the states, not being otherwise prohibited by the Constitution, are in fact empowered to establish relgions if they desire to do so. And only someone who believed what I regard as the silly idea that the 14th Amendment "incorporates" parts of the bill of rights (without specifying which parts, of course--the Supreme Council of Prophets will do that) could believe that the Constitution prohibits states from establishing a religion by legislative act.

Now, like Chemerinski, I also do not want to live in a country where a state could establish a religion, especially since adherents to my religion (i.e., presbyterian-reformed) are few in number. But this venue is where my opinion rightly belongs, and in the voting booth. My prefernece on this matter ought not be given the force of law simply because I am a justice of the U.S. Supreme Court and can give this preference the force of law by placing it in a legal opinion. Nine people cannot be given the power to make their personal preferences the law of the land; it's not republican. The distinction between policy preferences and the actual law must be maintained.

Another example of this confusion of law (i.e., What is the law?) and public policy (i.e.., What should be the law?) is the furor--during his confirmation hearings--over Attorney General Gonzalez's "approval of", a Justice Department memo, which supposedly authorized torture. Specifically:

The memo included the opinion that laws prohibiting torture do "not apply to the President's detention and interrogation of enemy combatants." Further, the memo puts forth the opinion that the pain caused by an interrogation must include "injury such as death, organ failure, or serious impairment of body functions in order to constitute torture." (from "Alberto Gonzales: A Record of Injustice," Center for American Progress, cited 21 July 2005)

Now, the way we heard it--or read about it--one might think that the AG, when he was Counsel to the President, was asked, "Hey, man, can we torture those guys we have at 'Gitmo'?" and said, "Of course you can." In fact, he was asked a legal question. He was asked if certain acts would violate the law. He, in turn, asked the Office of Legal Counsel to advise him.

So then, the memo in question was prepared for, not by, the AG. And it was prepared for him by the DOJ's Office of Legal Counsel at his request. (See Memo 1) The memo was an opinion on what the relevant law is with respect to torture (especially what constitutes torture under 18 U.S.C. 2340--2340A), and was written in four parts. Part I (Memo 2--12) is an examination of the statute's text and history, concluding that in order for an act to constitute torture it must inflict "pain that is difficult to endure," like the sort of pain that accompanies serious physical injury, or "extreme acts." Part II (Memo 13--22) examines the text, the ratification and negotiating history of the Torture Convention (U.N.), concluding that the treaty prohibits "only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for 'cruel, inhuman, or degrading treatment of punishment." Part III (Memo 22--27) examines the jurisprudence of the Torture Victims Protection Act (28 U.S.C. 1350) in order to predict the standards that a court will apply in trying to determine which acts qualify as torture for purposes of criminal prosecution. Part IV (Memo 27--31) examines international decisions regarding the use of sensory deprivation techniques, concluding that "there is a wide range of...techniques that will not rise to the level of torture." Part V (Memo 31--39) examines whether Section 2340A would actually be unconstitutional if it is applied to "interrogation undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers, concluding that, in fact, prosecution under Section 2340A would be an "unconstitutional infringement of the President's authority to conduct war." (I found this Part to be particularly informative regarding the Presidents's war powers, particulary his power to capture, detain and question enemy combatants "at least for the duration of the conflict." [Memo 38]) Part VI (Memo 39--46), is a discussion of various defenses against allegations of torture under 2340A.

During his confirmation hearings, the AG was asked about this memo. What astounded me was the number of questions and comments, especially from Senator Kennedy, about what whether this or that act ought to be thought torturous, as if that were the issue. And it wasn't. The issue was: What is the law? Gonzalez had a DJ memo advising him on precisely that question. I never heard any part of the memo refuted by any senator. I never heard about any of them saying anything like, "The Office of Legal Counseled erred in its examination of section 2340A in such and such a manner. How could you have missed such a glaring error in legal scholarship, Mister Gonzalez?" I never read any refutation of any of the contents of the DJ memo. Maybe I looked in the wrong places. At any rate, the questioning of Gonzalez focused on what should be considered torture, not what in fact, under the law, is torture. You see the AG's mistake, don't you? I do: he sought to find out what the law is when he should have sought to find out what the law should be. And all he had to do there, apparently, was ask Ted Kennedy. And there we get to the real culprit in all this: George W. Bush. What did he do wrong? Why, he failed to make Ted Kennedy his White House counsel! How could he have been so stupid?

I truly believe that life in the republic would be immeasureably improved if everyone would bear in the mind the difference between two questions: (1) What is the law? (2) What should the law be? The first question is for courts. The second is for legislatures.