Making Robespierre relevant

The following is an excerpt from an editorial in today's Inquirer:

Conservative unease with common law

Reject judicial activism, reject an American tradition.

By Nicholas Stephanopoulos

Who declared that a country's legal system is "poorly organized if a judge enjoys the dangerous privilege of interpreting the law or adding to its provisions"? Was it Sen. Lindsey Graham questioning Sonia Sotomayor about "judicial activism" last week? Justice Antonin Scalia in a biting dissent? No, it was the French lawyer Nicolas Bergasse in a 1789 report to France's National Assembly.

And what document said "the courts may not directly or indirectly take any part in the exercise of the legislative power" and "will always remain separate from the executive functions"? A proposal by President George W. Bush's Department of Justice? A bill submitted by congressional Republicans to prevent "legislating from the bench"? No, it was the famous Law on Judicial Organization enacted at the height of the French Revolution.

It is no coincidence that today's American conservatives sound like French revolutionaries when they talk about legal issues. To a startling degree, they have embraced continental Europe's historical skepticism of judges and courts.

The full article can be read at http://www.philly.com/inquirer/opinion/20090724_Conservative_unease_with_common_law.html

In a critique of the Freshman packet I am writing this year, Julie challenged me to be more clear about the impact of Rousseau's writing. I am always looking for ways to contrast Locke and Rousseau in ways that would be clear to freshmen, given how close they are about the idea of the "social contract." This article gets at the difference in a meaningful way, without mentioning either philosopher.