Voter ID has effects of its own. Having folks be engaged with the political process is itself a good end, and decreasing voter engagement is, absent other factors, a bad thing.
In a fantasy scenario where the best way to decrease American adventurism in foreign policy that kills a lot of innocent people were to require voter IDs, the good of requiring them would outweigh the ill of decreasing voter engagement.
So one of those “less freedom for the greater good” situations.
You’re basically saying that it’s okay for a government to become more oppressive so long as it’s only “those people” who are being oppressed.
That’s not remotely what I’m saying, but thanks for checking.
And I’m arguing that results-based support of the process has effects all its own. Poor ones.
Are there historical examples of support for judges emphasizing an expansive view of rights that you think I’ll consider to be poor results, such that I’ll stop supporting that approach? Or are those poor results theoretical?
Can you give us a moment to recover from our astonishment?
This isn’t an argument and isn’t even a fair summary. Dial back the hostility.
[/moderating]
May I answer that question in four years, following four years of Trump judicial appointments unconstrained by filibusters?
Or if you prefer, I’ll sweep you back to New York, c. 1900. New York had enacted a law that bakery employee hours must be limited to ten hours per day and no more than 60 hours per week, progressive work week legislation for its time.
But when Joseph Lochner, the owner of Lochner’s Home Bakery in Utica, was fined under the law for permitting an employee to work longer hours, he sued. He said that New York’s law was unconstitutional under the Fourteenth Amendment, because it interfered with the “right to contract.” That is, he claimed a constitutional right for his baker and he to agree to a longer workweek, and the New York law impermissibly limited that right.
Now, as you know, there’s no such wording in the Fourteenth Amendment as the “right to contract.” But the Supreme Court found the right there anyway. The Due Process Clause means, they said, both procedural process and substantive due process. And within the substantive due process guarantee, they recognized a freedom for bakers to reach their own agreements:
Yes. I think the opinion’s reasoning is unsupportable, but if I were on the bench I’d have written to concur in the result.
Well then help me out.
You’re saying that a hypothetical voter ID law meant to suppress votes in such a way that we got more representatives with your (and my) point of view would be a net gain. That yes, voter disengagement is bad, but worth it if it means congressional action that aligns with your foreign policy goals.
Yes? No?
Watch out, Dorkie! Its a trap!
Not even a little remotely?
(Underline added)
I am not sure why it cannot be the other way around.
You say that it is not the correct way around for the judiciary branch of the government to interpret laws in ways that the writers of those laws may not have intended.
It seems to me that the best way to go about addressing issues before the court is to make the best judgement possible, on the merits of the case, on arguments put forth, on case law and precedent, AND on the outcome that is created by the decision.
Just as you feel that if a law needs to be changed or updated, it should go through the legislature, I contend that if a law needs to be reaffirmed in light of a court ruling, it should then need to go through legislature.
So, if a judge decides that some words written down 50 years ago by people who are no longer alive mean something that may not have occurred to the original writers (or even would have been abhorrent to the writers, given the culture of the time), then that new reading of the law should stand just fine.
If the legislature doesn’t like it, they can pass a more specific law. If the people don’t like it, they can vote for legislatures that will pass a more specific law.
As said upthread, Justice delayed is justice denied. If we wait for legislatures to get anything done moving forward on civil rights or equality, we will all be waiting and waiting in vain. The courts do move more quickly in most cases for the advancement of social progress.
The legislature is still the check against the courts. They can always pass a new law, or in the case of a constitutional interpretation, they can pass an amendment, to make the intended effects of the legislation, representing the will of the people, more clear. If it is the will of the people that the law be interpreted in a more discriminatory way, then congress can make that explicit when it makes a law. They could add in “does not apply to homosexuals” wherever they want to, if that is their wish.
For the record, I think the majority opinion is persuasive. I appreciate the way the salient points were framed, isolating Hively’s actions and only switching gender as a way to bring her claim under the umbrella of Title VII. The passage from Scalia writing in Oncale was particularly apt:
My objection is that legislators are the ones in a representative democracy that are easily replaced by the people.
A ruling of constitutional dimension is fixable by amendment, yes, but that changes the requirement from a majority to a super-majority.
Voter disengagement is bad. Killing lots of innocent people is a helluva lot worse. You choose to obscure the second part of that moral calculus by callling it “foreign policy goals,” rather than "mass killing of innocent people.
A government that refrains from killing innocent people is becoming less oppressive, not more oppressive; a government that reduces voter rights is becoming more oppressive, not less oppressive. A government that does the latter in order to do the former is becoming less, not more, oppressive. Thus the problem in your phrasing.
I’ve heard this argument before but I feel it’s wrong.
The argument essentially boils down to saying that we should not only use the core principles established by older generations but adopt their passing opinions as well. I don’t think that’s a good idea and what’s more I don’t think that’s what those older generations wanted or intended.
Look at the eighth amendment, which prohibits cruel and unusual punishments. That prohibition is the core principle and that is enduring. But the consensus on what punishments are cruel and/or unusual is going to change. People of 2017 should not set their standard for cruelty based on what people in 1789 regarded as cruel; the people of 2017 should live by the standards of 2017. And the people of 1789 expected that; they wanted future generations to apply the law based on the circumstances of the future. If they had wanted us to live under their beliefs, they would have put those beliefs into the Constitution. But they deliberately chose not to. Instead they said “Here are the core principles. But apply them by your own standards.”
FWIW both Jim Crow and slavery were ultimately done in via the democratic process involving legislation. The Civil Rights legislation under LBJ for example, and the 13th Amendment at the end of the Civil War.
The way in which the opinions of the living trumps those of the dead is the living get to vote representatives in to office and the dead to not (at least not anymore, thankfully); it’s not a good system of government if judges can just change settled law in contravention of the legislation simply because “dead people wrote this.”
That being said, my view is a good practice of judicial review is to look first at the textual interpretation. I actually believe the text of a law should trump its intention, and basically it does. That’s how we have what are colloquially called “legal loopholes”, when legislators create legal text that, unwittingly, can cause situations they didn’t anticipate. But not every case before the law can easily be settled on textual grounds, so then I do think you should factor in legislative intent, but it should just be one factor of many. Judicial precedent is also a good thing to factor in. And yes, you also need to factor in current circumstances; a true slavery to original intent would basically require a finding that large swathes of the law don’t apply to things unforeseen when the law was written. It’s silly but you could make a strong “absolutist originalism” argument that the fourth amendment shouldn’t apply to electronic devices and few legal scholars would agree with that.
At the end of the day, when trying to reconcile new situations to old law, judges sometimes rule in ways that if you polled the people who wrote a law from the 1960s, would not have agreed with, but to me that isn’t an immediate problem.
With this ruling I do think there’s an argument that it goes against judicial precedent, which is problematic, but the judicial precedent on this aspect of civil rights law has been contradictory and confusing for a long time.
I actually think, without even getting into original intent or any of the rest of it, there’s actually a textual argument that the law already cover LGB people just as it is largely seen to already cover trans people. It’s just a new textual interpretation that hadn’t been previously accepted, but I think there’s a decent textual argument that the law as written probably always should’ve protected sexual orientation, and the only reason it didn’t is judges back when it were written were people who grew up believing homosexuality was deviant criminal behavior, so unsurprisingly no judges ruled that way at the time.
Where did they say that?
I chose to word it neutrally because you chose to obscure your belief (voter suppression is worthwhile if it aligns with your goals) with an issue that has moral certainty (innocent people should not be killed).
But the folks who have been gerrymandering our states for the last 20 years feel pretty strongly about their own moral certainties. Abortions are murder. The 2nd amendment is sacrosanct. Democratic policies will destroy America.
Or: voter disengagement is bad. Killing lots of innocent babies is worse.