Government is like small-minded replay officials, sticklers for a literal reading of brazenly unfair rules.
A single bizarre play Saturday during the Auburn-Alabama game that could have upended the college football championship picture is also a perfect illustration of one of our most enduring problems in legal philosophy.
A bad snap, a fumble, and an unfair replay decision actually show why a conservative legal philosophy that emphasizes restrained, highly literal interpretations of the law is no sure path to justice, even if it is preferable to the sort of lawlessness perpetrated by activist judges on the left.
Conservative legal thinkers often malign “results-oriented” judicial reasoning, and with good reason. We don’t want judges picking a winner, out of bias or preference, and concocting a bunch of excuses to support that decision. They should follow the law neutrally.
However, there are times when it is clear to one’s conscience that one result is obviously the just one, while the law itself is hazy, and doesn’t point clearly toward one result. Or worse, the general principles might slightly favor the unjust resolution.
In these cases, practitioners of judicial restraint will pat themselves on the back for going against their own “preference.” (I put the term in quotes, as it’s the one they use, even though I think they are often miscategorizing to themselves what is actually a demand of conscience.) I think this sort of thinking amounts to mere legalism, when what we should seek in our judges is wisdom.
As this is all very abstract, it’s sometimes hard for me to explain why I consider this issue so important, but the officials in the annual Iron Bowl showdown between Alabama and Auburn on Saturday provided a great example.
Here’s the scenario. With a little less than 10 minutes in the game, undefeated Alabama is trailing Auburn 26-14, but closing in on a score that would get them right back in the game. On a third-down play, Alabama has a fumbled snap out of the shotgun, setting up a crucial fourth down and nine.
Alabama broke its huddle and headed into a single-back, trips-right shotgun formation while the defense was still substituting two players. Alabama’s five linemen got set, and the center must have heard somebody clapping and thought it was quarterback Jalen Hurts, because he then snapped the ball way early. The ball went skidding past Hurts, who jumped on it. No flags were thrown. By rights, Auburn should have gotten the ball, due to turnover on downs.
But the play went to replay review, because it involved a fumble, and that’s where officials noticed that one of the Auburn players subbing off hadn’t gotten off the field before the snap. That’s 12 men on the field, one of the few penalties that replay officials are allowed to call.
Of course, the reason there were 12 men was because of the accidental snap, which had come so fast that Alabama’s three wideouts to the right were still jogging out to their position in the formation. All three were still in the backfield, too, making five players in the backfield in all, which means Bama actually should have had two violations — illegal motion and illegal formation. But officials in the booth aren’t allowed to call those penalties.
The correct result, the one the officials on the field should have produced if they hadn’t been caught off-guard, too, would have been offsetting penalties on the offense and defense, with fourth down to be replayed. If instant replay had never been invented, you’d have had a different result — the turnover on downs. But you could still call that fair, as the bad snap was Alabama’s fault.
What actually happened was that only Auburn was penalized, owing entirely to procedural requirements established by committees years earlier — you can review this, you can’t review that. This sort of thing happens all the time in our courts, too, as appellate courts often allow error to proceed uncorrected because it doesn’t meet a particular standard of review.
Alabama got another try, with fourth and four, and completed a pass, with the receiver stopped just short of the yard-to-gain. Ball don’t lie, as they say.
If you put yourself in the position of that replay official, stuck with apparently clear rules requiring an unjust result, you’ll probably have a bit of sympathy for the position judges are often in. What alternatives do you have for sticking to a narrow reading of the rules, thereby perpetuating an injustice?
You could turn a blind eye to the 12th man, and let the play stand as called, with Auburn taking possession.
You could strain your knowledge of the rules, and try to find some violation, any violation, by Alabama, that would allow for offsetting penalties to be called. That would get you the correct result by another path, but practically speaking, there are few penalties that can be called from the booth. Maybe an Alabama coach was a foot onto the field, as coaches often are, and you could flag him under false pretense for “interfering with live-ball action.”
Neither of these are quite satisfactory, although I would argue that either one is better than giving Bama a second chance because the officiating crew screwed up.
However, the NCAA guidelines for replay officials contain a catch-all provision that has parallels in U.S. constitutional law. After listing the specific scenarios in which replay officials can get involved, the NCAA Casebook states that, “No other plays or officiating decisions are reviewable. However, the replay official may correct egregious errors, including those involving the game clock, whether or not a play is reviewable.”
So replay officials have a license to “correct egregious errors” in the name of getting it right. That sounds like it could be a license for “judicial activism” from the replay booth. I think it could be an important safeguard. Or rather, since this license appears to be rarely used, I think its analogues in U.S. law deserve a second look from conservatives.
First, there are the unenumerated rights retained by the people (and not the states) under the Ninth Amendment. And we also have the doctrine of substantive due process, which conservatives long have shunned. “The Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness,” Justice Clarence Thomas has written.
The unenumerated rights, of course, have been interpreted almost out of existence, aside from the absurd right to abortion and whatever else progressives can derive from the malformed reasoning in Roe v. Wade. The statists on the left don’t want any obstacles to their totalitarian vision of cradle-to-grave social welfare, and the conservatives have convinced themselves that a “textual” philosophy that simply ignores the text of the Ninth Amendment is faithful to the Constitution. Together, they’ve destroyed individual liberty, and proven right the Federalists at the Constitutional Convention — the Bill of Rights has turned out to be more of a prison than a shelter, limiting the sphere of liberty rather than limiting federal authority.
The Ninth Amendment, properly interpreted, would reverse that to the intention of the founders, creating at least in theory a vast realm of individual liberty free from government coercion and restriction. That might seem unrealistic, but there’s a simple principle here.
Let’s presume that the liberty and dignity of man require some acknowledgment, otherwise we have tyranny and impunity, not a government based on any social contract theory. I would take this principle to the libertarian extreme, but for a workable principle, I think the guidance given to replay officials makes for a decent start.
Let’s correct egregious error by the government. Anyone who has sought to uphold his rights against some abuse by government — whether a police department, a zoning board, or an environmental regulator — has found that the law is stacked against him. Our various precedents on sovereign immunity and administrative deference work much the same way as the guidelines for the replay official in the Auburn-Alabama game. He can see that one side is violating the rules; he’s just not allowed to do anything about it.
We reward the government’s fumbles with another down and some free yards. Let’s stop doing that.
Brian Cantoni/Flickr-Creative Commons