While I respect your right to your own opinion, what you are advocating is pretty close to rule by [hopefully benign] philosopher kings. While it’s true that we, the people, can undo any damage the court does by re-writing the constitution, it’s not that easy, and I don’t think that’s the way things should work. The court should be a follower, not a leader in such matters. And I think the court has been careful not to get too far out ahead of the people on the issue of driving social change. If they did, we’d see a huge backlash that might even include a constitutional amendment to change the role of the court in such matters.
To anticipate the inevitable next objection: yes, given that I believe in an objective morality, I may be wrong. If I am wrong about the existence of objective morality, so what? Its absence says something itself about morality, and either I ought not worry at all about morality in that case, or else my subjective morality, based on a belief in an objective morality, is perfectly legit (given that there’s no reasonable way in the absence of an objective morality to judge something better or worse). If I am wrong about the particular nature of objective morality, then I am making a big fat mistake, and I hope to learn the correct nature of objective morality. My answers are therefore not etched in stone; I am open to thoughtful discussion of what properly constitutes moral behavior.
Daniel
It absolutely is. I make no secret of the fact that I think the world would be a better place if you schmucks would just do what I tell you to do; I’d be a rockin philosopher king. The fact that you refuse to do so is what leads to the problems in the world today. The closer we can get to rule by benign philosopher kings, the better the world will be, IMO. (Note that bloody supression of alternate beliefs != benign).
Daniel
So the National Guard should not have been called in to suppress the “alternate beliefs” of those who disagreed with *Brown *or the various Civil Rights acts?
If you’re at all serious about that belief, then should we get rid of Congress? Or should it’s sole role be to pick or confirm the president’s pick of the philosopher kings who will rule over us? I mean, why bother with a legislature to enact laws at all? Why bother with a Constitution?
The belief that the court ought not create social policy does not imply a belief in moral relativism. I am not a moral relativist, but I hold that the court is the wrong forum to make decisions based solely on personal principles. It is the wrong forum for reasons wholly apart from whether there is an absolute right or wrong. There are a lot of good reasons, here are a few: judges don’t get to investigate like Congress does, so frequently they do not have all the facts; judge-made policy is anti-democratic; the Constitution is supposed to limit popular choice, so its very purpose should prevent popular opinion from interpreting it–Constitutional interpretation is also anti-democratic, but it is supposed to be; and most importantly, the court’s only power lies in its legitimacy as a body that is not a political battleground. When the court loses that legitimacy, it loses its power, and that is very bad.
I agree with your point of view on abortion, but to many “doing the right thing” would mean “preventing women from killing their unborn babies”.
It’s a rationale exactly like yours which has given us a court with the likes of Alito, Thomas and Roberts. Do you really believe they make their judgements knowing they are morally wrong, just to fuck over liberals? No, they are just as certain of their view of “right” as you are. How can you possibly imagine that everyone’s view of “right” agrees with yours?
The perfect is the enemy of the good.
It might very well have been better, certainly more proper, if the oppressed were to wait patiently to accumulate enough political power so that they might actually *have * some political power. Bit of a chicken/egg problem there: how do they leverage what they do not have, and are forbidden to have by those who do?
Perhaps the Supreme Court was not the very best leverage for social change. OK,lets grant that for the sake of argument. Are we destroyed? Does our national machinery lie in ruins?
Or was the right thing done by less than perfect means? Are we to mourn? Tear our clothing and heap ashes upon ourselves? I think not. The Constitution is not sacred, justice is sacred. If the Constitution can be perverted for the purposes of keeping power from those it ought to protect, and it surely was, why is it somehow wrong to bend it on behalf of justice? It is a strong and worthy thing, it will recover.
No argument here then. There can be more than one good faith interpretation of the written words in the Constitution. So, if you prefer those “constructionists” who interpret as you do, fine, that leads to interesting semantical debates. We may disagree, but respectfully, acknowledging the effort to remain true to what was established as law, not what we wished had been.
If like others in this thread someone feels the Constitution, as it is written, shouldn’t limit the biases of a Justice with sensibilities consistent with his, that’s where I take exception.
Well, Derrick Bell and others aren’t arguing that Brown wasn’t as good as it could have been. They’re arguing that is was counter-productive. So in this case, it would be letting the perfect be the enemy of the bad.
They may not be right, of course. But still an ends-justify-the-means jurisprudence may be more damaging to the Constitution than you think. We’re living in an Gonzales-led case study right now. How do you think it’s going?
Aside from all this, has anyone any reaction to the revelations of Sen Danforth, as noted above? Some appears to be fibbling.
But do you accept the outcome when this less-than-perfect abuse of the process produces a result you find offensive? Do you see that this is what we are trying to guard against? It’s the capriciousness inherent in those who “know better,” those above the will of the people, those who feel unbound by the rules because they are on the side of the angels, that create the slippery slope we should all avoid.
Absolutely not. They should, of course, have been called in to suppress the actions of those who prevented students from enrolling in schools–and at any rate, to the best of my knowledge, the National Guard weren’t employed by philosopher kings.
You’re missing my point. My point is that there is a right thing to do and a wrong thing to do. If everyone would just do the right thing, we wouldn’t have had the problem in the first place. The fact that people refuse to do the right thing is why we have this incredibly inefficient system.
Given that we have this inefficient system, this system that pretty much sucks at getting the right thing done, I’d prefer to work within the system to get the right thing to happen. That means I’ll support senators who support justices who support positive social change–and I don’t give a crap how the justices define positive social change, it’s how I define it that matters to me.
Nope: I should be the one who chooses the philosopher king. You still seem stuck on the belief that I’m looking for a good system of government, when I’m really not: I’m looking for a good society. I recognize that that’s utopian, and that I’ll have to work inside a bad society to achieve my goals.
Yeah, it’s a rational exactly like mine, in the same way that a cop who shoots a raging mass-murderer is “exactly” like a hired assassin, given that they both engaged in the same act of pulling a trigger.
The difference, I think, between myself and Alito is that I’m right and he’s wrong. It’s the same difference as that between myself and someone who believes that God created the earth 6,000 years ago. I think you still can’t wrap your head around what an objective morality implies.
I certainly don’t think that everyone’s view of right agrees with mine, and I can’t possibly see how you’d get that impression were you to read my words. I just think that mine accords with an objective morality, and theirs is objectively incorrect. I could be wrong, but I operate according to my best understanding of the cosmos.
Again, SO DO THEY. It just so happens that they’re wrong.
Daniel
Are we talking about “Brown” here? I, for one, think that “Brown” is an example of the Court getting it right-- ie, overturning the earlier, wrongly decided, precedent set by “Plessy”. As for “the constitution is not sacred, justice is sacred”, that is a false dichotomy. We have no way of deciding among ourselves what “justice” is except by writing it down. That’s what the Constitution is-- our collective agreement of what constitutes justice.
Daniel: As a student of history, I would think you’d be aware that the many attempts at rule by “philosopher kings” throughout the ages have not turned out so well. And while the Court has often inched out ahead of the people in setting social policy, I see no reason to think that a balls-to-the-wall approach, which you seem to be advocating, would turn out any differently than those other attempts.
Yeah, maybe I should’ve said something about how I recognize that it’s a utopian vision, and that I therefore have to work within the existing inefficient system. My bad!
Edit: That’s not fair, given that I just posted the utopian bit. I’ve explained my general approach on these boards a number of times, but it’s stupid for me to get frustrated when folks don’t understand the whole thing from a few posts in a new thread. Sorry about the snark.
Daniel
Perhaps I’m being overly pessimistic and cynical when I disagree with my fellow social liberals on this whole enlightened despot thing, but I can’t bring myself to put my life, my rights and my happiness on the line for a philosophy that seems just as likely to bring James Dobson to power as it is to bring Rosie O’Donnell.
No problem. I think we are talking past each other on this, as I’m not talking about some utopian vision, but rather the best compromise I think we can make between mob rule and dictatorial rule. I start with the assumption that self-governance is the good we are pursuing above all else. You don’t. That’s fine, but if start with two radically different assumptions like that, it’s no wonder we come to radically different conclusions. No point it arguing about the conclusions in that case.
Let me change that last part. We can, of course, come up with many different ways of determining what justice is. One way would be to give a blank check to 9 philosopher kings and ask them to make sure justice is served. I wouldn’t trust that type of system, and that isn’t the type of system we have.
The point you’re missing is this: The counterpoint to your belief that you know best about objective right is not a contradictory group that holds a different perspective on what is objectively moral or ethical. The counterpoint is a group who believes the greatest good, the only workable solution, is one that relies on the rules of established constitutional law, regardless of where that reliance takes us–even when it produces an outcome we find offensive. That serves the greatest good, even if it doesn’t feel that way in a given circumstance. Surely you’ll excuse us if we don’t agree that you know best, given that we don’t expect you to accept our worldview as law either. The law is the law, regardless of what any one of us wish it would be.
If the law creates a circumstance so repugnant as to be unacceptable and unresolvable (there are remedies), let’s all lock arms and revolt. Short of that, the solution can’t be to game the process we’ve all agreed to, right?
John put it best. We’re arguing from different axiomatic foundations.
Don’t get me wrong, Daniel, I’m not a moral relativist…I believe that there are some things that are inherently right and some that are inherently wrong. But in terms of the issue we’re discussing, it doesn’t matter if someone mistakenly believes the wrong thing is right (or vice-versa). The point is exactly that any given justice may be wrong about what is right. But if the person believes with his whole heart and mind that he is doing what is “right,” how can you say that he is not behaving ethically in ruling based on that belief? (If that is your critera for ethics on the court.)
I’m a moral relativist. At least I think I am. Morals are situational and subjective. We do not all share the same moral code, and there isn’t some scientific way of determine what the the “right” one is. Sure, our various moral codes tend to overlap to a large degree, and that’s because our sense of right and wrong is a product of who we are and how we got that way*.
Being social animals, we need an innate sense of what is acceptable behavior and what is not. It’s no evolutionary accident that we tend to agree on a lot of moral issues. I may think that someone like Daniel shares enough of my moral code that he’d make a fine leader, but I’m still unwilling to give him the power that a philosopher king would have. Or, I’d be concerned that once that power were handed over to him, it would either corrupt him (it is said that power does that), or that said power would end up in someone else’s hands. I don’t want to have a revolution every time we need to change our government.
*True on the individual level, and on the species level as well. How we’re brought up as individuals is important, but how we evolved as a species is important, too.