Once more I am in a debate, but this time the topic is:
This puzzles me, because as far as I’m concerned it is ALWAYS better to seek reform through the legislature. Reforms forced by an unelected judiciary are undemocratic and tend to be resented far more than changes introduced by the elected representatives of the people.
Now, on a practical level, I know that sometimes it is easier to get reform through the courts, but reading the motion I could help but think that this is never the better route.
If I was to map out a ‘morally superior’ route, it would go:
Referendum > Elected Legislature > Unelected Judiciary
Sorry, I should add that while advice for the debate is welcome, the point of the thread is more whether there are any situations where people think the above hierarchy doesn’t apply.
I think California is a good example of what heavy use of referenda can give you. Sometimes, justice can’t wait for public opinion to catch up. If it weren’t for the courts, we’d still be waiting for racial equality in civil rights. The numerous state referenda and legislated amendments that ban same-sex marriage should be example enough of justice denied by popular vote. Not acceptable.
And you, of course, get to decide when justice has been served and when it hasn’t, and assume the moral authority to override the principle of majority rule. It helps if you insist that whatever it is you want is a moral imperative on the level of the civil rights movement.
That assume that the courts are going to give you the kind of “justice” you are looking for. Do you really want to take the issue of SSM to the Supreme Court right now?
I think it’s preferable to go through the legislature rather than the courts. The city of Shreveport, Louisiana desegregated their city buses a few years before the Montgomery busy boycott that started in December of 1955. There were also schools in the United States that were becoming integrated without incident. Particularly in rural areas, it was simply too expensive for some school districts to maintain separate facilities, staff, etc. for blacks and whites even if the black schools weren’t funded as well. So what happened? The Supreme Court made a ruling in Brown v. Board of Education and segregationist rallied to the cause. Many schools shut down rather than segregation (it didn’t just happen in Little Rock) and the decision may have exacerbated racial tensions. Another consequence rarely spoken of is what happened to African American educators, administrators, and the staff of black schools. They were fired. If you have to integrate the schools you’re going to have a duplication of certain posts and it wasn’t the whites job’s that were going on the chopping block.
Government derives its just authority from the consent of the governed. Therefore, social reform thru legislation or referendum is not merely preferable, it is pretty much mandatory.
The only exception is when judges overturn legislation that violates the Constitution, which was ratified and therefore to which citizens of the US consent. Which brings up the controversy of judges inserting things into the Constitution that are not there already, and therefore to which the people did not consent.
Odesio makes a good point. It should be added that abortion laws in Europe weren’t mandated by the courts, and nobody’s ever heard of anyone killing abortion doctors or bombing abortion clinics in Europe. Abortion became a heated issue in the United States in large part because many people felt they’d been left out of the decision making process.
Judges should not legislate. Not even Supreme Court justices.
First, I’m not quite clear on the OP’s use of the term “social reform.” It could be read to encompass things like getting rid of discrimination, but could also be read as implementing policies which are currently not in force which would bring about social change – say, health care reform or free college tuition. I’ll limit my comments to the first set of issues.
So let’s say there’s some longstanding law on the books that would seem to contradict some constitutional right that we may have. Could be about race, sex, free speech, gun rights, whatever. When the law was first passed, it was viewed as meeting constitutional scrutiny (like separate but equal, gun ban in DC, whatever), but the way the courts have interpreted the Constitution in the decades since then, the reasoning for the law appears suspect, or perhaps controversial.
Is the OP proposing that the meaning of the Constitution as it applies to those (debatable) rights should first be dealt with by referendum or legislative action?
To me, that seems to turn the whole concept of rights on its head. The whole reason rights are in the Constitution is to protect the minority against the whims of an uncaring majority – and yet, the solution is supposed to be to only recognize those rights which are supported by a majority wishing to change them? That doesn’t seem right at all, because it leaves a genuinely oppressed minority with no recourse against those who are perpetuating the wrong.
No, the concept of rights is to protect the entire community, not just minorities. There are many times when the majority needs protection from a minority, e.g. the lower classes from the upper.
And minorities are never wrong when they make demands upon the majority? Sometimes what a minority really wants is the power to bully the majority, as when Hispanics presume to dictate to the Anglo-American majority what our immigration laws should be.
Anyone is free to make demands upon anyone, regardless of who happens to be the minority or the majority. This is not tyranny. It is free speech.
I suppose there could be a few instances in which a minority have compelled some type of unusual, illogical, or undesirable solution upon the majority, once we have have had time to reflect upon the situation aided by the dispassion of hindsight. However, I would submit that these instances pale in comparison by the number of times that the majority has oppressed the minority – and what’s more, the OP would seem to propose a state of affairs that would ENCOURAGE the ability of repression by the majority.
But to your specific comments, I don’t think anyone is suggesting that immigration laws be rewritten by the courts… sooo, what does that have to do with anything?
Did I miss someone removing one third of the three branches of government we were set up to have?
By design, the US has three branches of government. They are explicitly there as a check and balance against each other.
So how is it the courts are not “democratic”? They are a part of our democracy. Some judges are, in fact, elected and the rest are appointed by our elected leaders. Judges are not thugs who strong armed their way to their position ala a dictator.
There are checks and balances on the judiciary too. A decision can be appealed…several times if wanted. The executive and legislature can redesign a law or pass new laws to achieve what they want if a court does something they do not like (ala Kelo v. City of New London…many were appalled by the decision and new laws were passed around the country to prevent what the court said was ok).
To think the judiciary should not be a brake on the executive and legislative branches is absurd and decidedly un-American.
This is possibly the worst cause and effect analysis I’ve ever seen.
America has abortion clinic bombers because America has tons of crazy religious people, not because abortion was legalized by legislatures.
The Civil Rights Act and Voting Rights Act were passed by legislature, so by your logic there couldn’t have been any violent opposition.
ETA: To answer the OP, I don’t think it matters, although legislative action is slightly preferable because courts can only address the questions before them.
Ah, yes, where would the minorities be if they didn’t have such noble, self-appointed protectors?
The Bill of Rights wasn’t written to protect minorities from the majority. The Bill of Rights was written to protect the people from the state. There are many examples of societies ruled by elites that were indifferent or openly hostile to the majority. That’s what the men who wrote the Constitution were thinking about when they created that document. Their object was to limit the power of the state, not saving minorities from the oh, so horrible majority.
It was offered simply as an example of a minority that quite clearly wishes to run roughshod over the majority. I notice you ignored my example of the upper classes.
No one today, a half century later, is using bombs to oppose civil rights. More than thirty five years after Roe vs. Wade, we still have bombings and arson attempts at abortion clinics. You think that, maybe, just maybe, we would all have been better off if this controversy had been settled by legislators rather than judges?
You’re not as good at analyzing logic as you think you are.
