President Obama has nominated a law professor for a position on the 7th U.S. Court of Appeals. The professor believes that judges have the ability to create laws and that the Constitution “governs no one.”
Victoria Nourse is currently the Burrus-Bascom Professor of Law at the University of Wisconsin School of Law. Nourse was first nominated for the 7th Circuit Court of Appeals on July 14, 2010. The nomination was returned to the President in December and Obama re-nominated Nourse in January, 2011. Sen. Ron Johnson (R-Wis.), opposes the nomination under the Senate’s “blue slip” policy. The policy is an internal Senate procedure that gives senators in a particular state the ability to obstruct judicial nominations in their state.
Nourse embraces a concept called “new legal realism” which is critically opposed by “textualists” who believe the text of the Constitution should be taken literally. Nourse criticizes textualists for seeking to preserve legislative intent by referring to legislative texts. “Textualists contend that judges will be restrained from engaging in politicized lawmaking by standing closely to the text.”
In a lecture at Emory University titled “My Political Education and the Self-Transcending Constitution,” Nourse criticizes the amendment process to the Constitution calling it a “pact with Hell.” Nourse complains that the Constitutional process allows “a few minority states to block an amendment.”
Nourse has also stated that she believes judges have the authority to amend the text of the Constitution because their rulings amount to a mini-constitutional convention.
“The Constitution changes as the people who constitute the nation change – as they participate and take control of their government – as they re-constitute themselves. The separation of powers has always been, since our founding – the means by which the Constitution may change in practice legitimately short of the far more arduous and almost impossible amendment process.”
Nourse continued, “Students of our government tend to think of the separation of powers as an impediment – but this depends upon a conceptual mistake about the nature of constitutional power. In my view, power is not a question of written texts’ ascription or adjectival function – it is not about trying to define what is executive or legislative – it is the power of the people who are constituted to act in certain ways. When the people converge, through the means of the separation of powers over a long period of time, a constitutional convention arises. These constitutional conventions … are embodied, not in formal amendments, but in what Yale’s Bill Eskridge has called small ‘c’ constitutionalism including court rulings … which re-constitute the people and their image of themselves. This kind of small ‘c’ constitutional change is as important, indeed, sometimes more important, than the more traditional kinds of change through the amendment process.”
Judicial Action Group said that Nourse’s views would give the Supreme Court the ability to amend the Constitution based on their political views. “Nourse’s advocacy in favor of judicial usurpation of legislative power – even usurpation of constitutional power – is anti-constitutional. Her view makes a mockery of the Constitution and would grant as few as five judges the ability to amend the Constitution according to their own political views.”
Nourse also believes there is no individual right to own firearms. Writing in a law review article, Nourse said the Supreme Court found “new rights” in the Heller case. The Supreme Court ruled, in the Heller case that the second amendment guarantee of the” right to bear arms” was an individual right.
Regarding the Constitution being the supreme law of the land, Nourse says its grants of power “govern no one.”
“The standard view of the Constitution – held today by most conventional constitutional law scholars, I would add – is a weak, or qualified, version of the old positivist position. The idea is that the Constitution is a law (albeit a higher one), that law is command, and that command is to be found in the text.”
Regarding the authority of Congress to pass laws, which says in Article 1, Section 1 that “All legislative Power herein granted shall be vested in a Congress of the United States”; Nourse states, “These descriptive words, assumed to be the most important and naturalized text in our Constitution, do nothing in and of themselves. They govern no one.”
JAG says that, “If that, the exclusive grant of legislative power to Congress ,‘governs no one’ then judges are free to legislate their own policy preferences from the bench.”
Nourse is also an advocate of using foreign law in court decisions. In a review titled “Verities of New Legal Realism: Can a New World Order prompt a new legal theory” Nourse states, “New legal realism, in its various forms, holds out hope for a legal theory and scholarly and policy agendas that more adequately respond to a world in which politics is possible even if imperfect, in which judges do not feign restraint while recognizing the inevitable risk of partial judgment, in which markets are no longer assumed to self-regulate, and in which the power of globalization on all of our lives is recognized.”
The country’s founding document, the Declaration of Independence, states that our rights come from God. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Nourse disagrees with the founding fathers, saying that, “Real life, and reading hundreds of cases, have taught me that the natural in the law is quite unnatural, quite „made’ in the image of human relations, and that this is not simply a theoretical trope, that this ‘madeness’ is quite real and demonstrable.”