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Interpreting and Preserving the Constitution
selves. It is usurping the functions of a legislator and deserting those of
an expounder of the law.’’
Judges, then, have a special duty to maintain the integrity of the American constitutional process, to see that the rules are uniformly followed,
and to hold all public officials, including themselves, to the same standards. This has meant that American judges have been especially concerned about procedure. By following the same procedure in every case,
whether it be in the conduct of a trial or in the interpretation of a statute
or provision of the Constitution, a judge may rightfully claim that his
personal preferences did not intrude upon the dispute. Certainty in the
law—an essential attribute of rule of law—is undermined when judges
repeatedly change the rules, overturn established precedents, and arbitrarily reverse themselves. This has been recognized since the dawn of
Western civilization. Thus the ancient Code of Hammurabi, written by
the Babylonians in 2100 b.c., declared that, ‘‘If a judge has tried a suit,
given a decision, caused a sealed tablet to be executed, and thereafter
varies his judgment . . . then they remove him from his place on the bench
of judges in the assembly.’’
Such rigorous adherence to procedure has also meant that the actual
outcome or result of a case might not be what the judge privately