What Gorsnak said too true.
The interplay between the provinces and the feds with regard to federal legislation (including the Criminal Code), is quite complex, often contentious. Recourse to the courts on constitutional issues is a very important part of our system of checks and balances.
Blalron: Yes, yes, I realize you find will to power better than the will of the people. I respectfully disagree. And you might consider the notion that voter apathy is a sign that most people in a state are perfectly content with the status quo. You might also consider that the fact that so many don’t vote should actually make it easier to change the laws – you really don’t need to court the people who stay home on election day.
Gorsnak, Muffin: You guys act as though the US isn’t a federal system. Hello! We are! We have laws, including criminal laws, made at the federal level that bind all of the states, some of which I’m sure the citizens of a given state may not be too keen about. Having said that, I stand by my earlier comments.
The problem herein, IMHO, Dewey, lies in the conception that the Constitutional rights actually are present to protect individuals from what’s been termed “the tyranny of the majority.” To give you an extreme example, 10,000 fundamentalist Baptists can elect a Baptist school board that insists on teaching a curriculum that is based on Baptist Faith and Message doctrine – and that doesn’t make it legal.
Precisely where one draws the line on what those rights are, in cases that seem “fringey,” is something on which reasonable men can disagree. But I trust that you would concur that, even under a Harlanian “balancing” perspective, there are things that a popularly elected legislature may not do, unless they arrange to enact a Constitutional amendment to do them, because they are prohibited under the Constitution and the decisions resulting from it as the law currently stands.
Blalron, elucidator and I simply disagree with you on the extent to which those constitutionally guaranteed rights extend – for reasons we’ve explored ad nauseam in other threads.
No, you may only understand that those who are opposed to the viewpoints of far-right social conservatives are rightfully alarmed at Pryor’s nomination. I would happily tell my senator that I am opposed to Pryor’s nomination.
**And the left complains about the right having “litmus tests.” Sheesh. **
when the right starts packing the court with partisans like Scalia, the left had better get off its ass and oppose, oppose, oppose. We are already facing the consequences of not having opposed Scalia’s and Rehnquist’s nominations vigorously enough – a corrupt, partisan court.
Poly: As you know, I’m not saying that the constitution doesn’t or shouldn’t act as a brake on the legislature – I really only object to judge-created rights not actually found within the document itself using nonsensical notions like “substantive due process.” But detailing the contours of that is a thread unto itself; do I really need to repeat all that stuff every time I make a point about democratic self-governance? My post was directed to the general point made by Blalron – namely, his stated disdain for democratic decisionmaking. I would hope I could make that point without carving out every single exception to the general rule.
Evil Captor: You contradict yourself in the span of one sentence. You’re basically saying “No, social conservatives should not be barred from the judiciary but I think we should fight to prevent the appointment of social conservatives.” Well, which is it? You’re obviously fighting the appointment of social conservatives because they think they are not suited for the bench – you are, in fact, trying to bar them from the judiciary.
Let me put it to you more simply: are there any circumstances where the nomination of a known social conservative would not meet with your opposition?
Maybe I shouldn’t get in here, since I’m not American and have no in-depth knowledge of the U.S. political/legal system, but here goes.
I see Dewey getting a lot of flak for defending the AG’s actions with defending a specific law. Some posters seem to think that Dewey says so only because it is a conservative law that agree with Dewey’s political views. For what it’s worth, my political views are liberal but I still agree with Dewey that the AG should defend this specific (and ridiculous) law in court. Any lawyer worth his salt should do so, if he found himself in the position of the AG. That he may do it because he wants to do so may be a reason to heap scorn on him as a citizen, but is no reason to consider him the less a lawyer for it. As long as we believe in democracy, we should be glad that the state-appointed officials do their job to uphold the state’s laws in a neutral manner.
That said, of course there is every reason why U.S. citizens may oppose or support specific candidates who agree with their personal political positions. As far as I can see, that is the only thing Evil Captor wants to say, and he is correct in that. He doesn’t say that conservatives should be barred from taking office, but that he as a liberal-minded citizen opposes conservative nominees. That is no more inconsistent than saying ‘X has the right to run for President, but we should vote for Y’.
I get the impression that the debate is turning into a debate on how lawyers have to operate within an ‘evil’ regime such as Nazi Germany or apartheid South Africa. That however is a very different question since I doubt we can say that the U.S. is in that league. Even then: a lawyer could at most refuse to cooperate, but he is not allowed as a lawyer to abuse his discretion in secretly working against the system. I know this does not sit well with ordinary ethics, but it should be remembered that during the New Deal the conservative Supreme Court consistently overruled democratically chosen laws. Ordinary ethics is too much derived from popular movies, where the loner with the supreme view of the good opposes an entire regime. This very same attitude may lead you to being Ghandi or the Una bomber; regardless of whether this is a risk that one must run, it hardly is a proper ethic to instill in the lawyers who have to uphold the legal system.
For those who are interested in some further reading, see:
There are studies on the role of judges (who mostly wholeheartedly supported the regime) in Nazi Germany, but I don’t have a cite handy.
Oops, hit the Submit instead of Reply (why don’t they make the submit button smaller and mark it in red: PRESS AT YOUR PERIL?).
I should add that in practice the distance is not so very disjunct as I just mentioned, depending on your role in the system. A judge can and does to a certain extent weigh his personal views in his decisions. The study of Dyzenhaus shows that South African judges fitted into either of two categories: those who wholeheartedly went with the system and interpreted neutral rules in an ‘apartheid’ manner, and those who found apartheid an abhorrence overlaid on the neutral basic law, therefore interpreted everything if possible neutrally. Still they could not override the apartheid laws per se, and as judges they were right in not doing that.
An advocate/defence lawyer may as a private citizen support a certain bill that for example takes curtails the rights of a suspect (note: I am not in favor of that), but as a lawyer he is not allowed to refrain from exercising the existing rights on behalf of his client. In other words: he may not act as if the bill he personally desires is already in effect. The analogue would be that your doctor would decide for you without your consent whether you should undergo a certain treatment. The same applies, mutatis mutandis, if the client is the state.
Nice job, TTT!!!
I am in complete accord with Dewey on the AG’s professional ethics, though I have some reservations about his personal ones.
And one point for Dewey’s side on this:
…and used the idea of substantive due process in their opinions.
IMHO, SDP has a real and very limited role to play – a sort of "you must abide by both the letter and the spirit of due process. If a North Carolina case I’ve mentioned before, the Constitution is silent on the italicized word in the Court’s assertion that a defendant is entitled to the “effective right t counsel” – but a court-appointed lawyer who slept through the majority of the trial may have been in compliance with procedural due process standards, but can hardly be considered to have made any impact on the point behind why that requirement is there. To require that a defendant have counsel who does a reasonable job of presenting his defense and rebutting the prosecution, so far as is possible, is part and parcel of why the Sixth Amendment right to counsel is in fact present in the Constitution. And that is a good example of proper use of substantive due process.
I made no comment about the US system. I made an observation about the Canadian system, which differs in sustantial respects from the US system. Surely you’re not suggesting that the Alabama AG has a legal responsibility to defend federal laws. Is that not the responsibility of the federal AG? To my knowledge, Crown Attorneys are not divied up in such discrete roles in Canada - provincial and federal attorneys are part of a branching hierarchy, as it were, rather than a group of seperate, parallel systems. For example, an Ontario court recently ruled that restrictions on same-sex marriages are unconstitutional. The Ontario Justice Ministry declined to appeal, but the Federal Government chose to appeal. If I’m not mistaken, that couldn’t happen in the US, as any given law falls within the purview of either state or federal jurisdiction, but never both.
Second, and more important, I made an argument as to why there’s no reason to think that government officials declining to pursue appeals processes is any less democratic than government officials passing legislation. Voters have precisely the same recourse in each case if they are unhappy with the actions of said officials. You failed to address this point.
“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”
–Oliver Wendell Holmes
Gorsnak, regarding your second point: the difference is that the latter government officials (parliament) have been chosen in order to pass legislation for the people. The former officials (the AG, judges etcetera) have been chosen to uphold the laws that have been passed by the proper legislative procedures.
What would you think if the secretarial staff of Congress would on its own decide to modify the wording of the proposal bills? The staff is there to be an administrative help for process, but has in no way a democratic mandate to modify the bills.
I am aware that the situation in the U.S. is a bit more complicated than this, given the (as far as I understand it) open political motivation for putting up certain nominees. Still as far as I know judges and AGs are not put there solely to promote political viewpoints; they are allegedly inordained to uphold the law. In fact in the Supreme Court certain of the conservative nominees have on occasion voted with the ‘left’ because they felt they had to do so for strictly legal reasons (such as stare decisis).
Not that Dewey couldn’t have said all this for himself (and would have done so better than this), but you might like to hear it from a different viewpoint as well.
Uh, actually, “running to the courts” is the sort of action taken by someone someone whose liberty is restricted by a law, regardless of whether anyone else finds the law “offensive” or not. That’s why we have judicial review of the acts passed by legislatures in the United States. There is absolutely nothing wrong, and in fact something excedingly right, about taking action through the courts to strike down laws which are “offensive” to the rights and dignity of the individual even if everyone in the jurisdiction other than the “offended” party is “offended.”
Or are you suggesting perhaps that Mr and Mrs Loving, Dr Griswold, Norma McCorvey (“Roe” of Roe v Wade), Linda Brown and the others who, regardless of the support for the laws limiting their liberty, should have foregone the courts and lobbied the legislatures for repeal instead?
Canada is not the US. Crown attorneys do as the Justice Ministry directs them. They are not “selected to uphold the laws that have been passed” per se, they are hired by the government to represent it as directed to do so by said government. Dewey was trying to tell me that somehow it’s undemocratic for a provincial justice ministry to decline to appeal decisions as far as is feasible. Perhaps a case for such a position can be made with the US system, but I disagree that it can be made with the Canadian system.
Dewey Cheatem Undhow:
“I am not trying to defend Mr. Pryor as a paragon of judicial excellence. I am merely pointing out a flawed inference drawn by the OP.”
Yes, Dewey, and that flawed inference was pointed out by you and acknowledged by many several pages ago. The problem is that as other posters including myself have moved on from acknowledging your point–that the position of AG entails a professional obligation to defend the state’s laws–to demonstrating Pryor’s political partisanship for a more broadly construed religious-right agenda, you have tended both to dodge this broader issue, and to act as though there were some logical conflict involved in examining both positions side-by-side.
“Because this notion goes against the plain language of the statute – it explicitly makes illegal not only obscenity, but also devices “designed or marketed as useful primarily for the stimulation of human genital organs.” That’s pretty specific language. It’s hard to see how it would “inadvertantly” outlaw vibrators – it appears to be quite clearly directed specifically at vibrators and similar devices.”
Inadvertently because, apparently, no one read the full text of the obscenity code very carefully.
Here is one of several cites that reports it this way:
“The amendment banning the sale of sexual devices was part of a package of legislation strengthening the state’s obscenity law. **The legislation’s main point, supporters said, was to ban nude dancing in Madison County and to give local communities the ability to set standards for their community.”"**
And here is one that goes a bit further:
*"What’s ironic is that the stipulation was added to the law purely by accident, and once it was passed several of the legislators were quoted as saying they had no idea how the ban had poked its head into being.
“We had a state legislator, Tom Butler, who was offended by the nude dancing proliferating in our rural areas, so he went to District Attorney Tim Morgan, asking him to draft legislation to shut down strip clubs. Apparently, Morgan’s office Xeroxed the ‘comprehensive obscenity law’ from an adjoining state, and handed it to Butler, who apparently assumed – I guess without reading – that the focus of the law was to shut down nude dancing.”*
Assuming that this is account is reliable, there does not seem to have any focus on or debate about the vibrator ban at all. The legislature believed that it was clamping down on nude dancing and, perhaps, related “obscenities” but without specifically raising the subject of whether mechanically induced orgasms in the privacy of the bedroom could possibly be deemed as construing obscenity–much less a threat to health and morals.
Now it’s possible that the language itself came from Georgia where, as we know from the link I posted earlier, at least one jury deemed the existing vibrator ban to be “archaic.” So it’s quite possible–perhaps even probable–that this law doesn’t represent the will of the majority according to the loosest and most generous conceptions of that term. That is, the demonizing of the artificially induced orgasm does not seem to have been the focus of any legislator’s activities, or the subject of any legislative debate or public discussion. And, in at least one state with a somewhat similar demographic profile a jury has deemed the law to be “archaic.”
Under those circumstances, I would find Pryor’s obligation, considered in the abstract, to go the extra mile in defending this statute on behalf of the state to be relatively weak. That said, there is no longer any need to discuss Pryor’s activities purely in the abstract. We now know that he is political partisan of many religious-right causes, and that he has chosen to use his position as AG in order to further those religious-right causes.
From this bigger picture, I believe there are strong grounds to conclude that Pryor’s crusade against the non-reproductive orgasm derives from a political and moral agenda that stands quite apart from his professional duties as AG. That in a nutshell is my point; and I’d rather not argue it further as I believe there is little else left to say.
As to TTT’s post and Polycarp’s reply I’d like to dispute the notion that there is any “side” in this thread opposed to an AG’s adhering to professional ethics as described. I’d like, for example, to see John Ashcroft vigorously pursue the legal rights of abortion clinics to operate free from undue interference. But I am not holding my breath because, as a realist, I know that any given AGs understanding of his/her ethical obligations tend to be tinged by his/her political agenda–especially when that person happens to embrace a zealous political agenda. That’s my problem with Bush’s appointees: they are zealots for radical conservative and religious causes.
Insofar as Pryor’s anti-vibrator activities have reflected the disinterested professional advocacy incumbent on his AG role, I support him. But it must be said that on the church-state issues that he’s involved himself in, his conduct has been a) voluntary (no challenge to Alabama law was involved) and b) partisan–reflecting the agenda of the religious right.
Now, speaking as a strong advocate of democratic governance, I have less problem with Pryor’s activities as the elected AG for Alabama, than I do with the idea of him as one of Bush’s judicial nominees. That is, I do not take his activist religious-right agenda to reflect the will of the people in Alabama, Georgia and Florida and, just as important, I do not take that agenda to represent the constitutional and historical principles of United States society.
This brings me to DCU’s challenge to Evil Captor:
“You’re basically saying “No, social conservatives should not be barred from the judiciary but I think we should fight to prevent the appointment of social conservatives.” Well, which is it? You’re obviously fighting the appointment of social conservatives because they think they are not suited for the bench – you are, in fact, trying to bar them from the judiciary.”
Dewey, since you seem to know something about liberal theory–by which I mean the political theory of constitutional democracies such as ours–I’m surprised that you don’t understand Evil’s distinction. Evil is basically saying that there should not be some kind of formal ban, statutory or otherwise, on appointees of a particular poltical stripe. But he’s also reserving his right as a citizen to oppose the appointment of nominees who support a brand judicial activism that, as he sees it, is corrosive of our constitutional liberties and democratic principles.
I agree with him. In any case, I don’t think the term “social conservative” sufficiently describes the threat posed by the religious-right’s judicial agenda. It is basically a theocratic agenda and, therefore, at odds with the secular principles that underwrite our democracy. And there is also nothing “conservative” about it: it is, as I said above, a radical agenda that seeks, in radical fashion, to subvert rights and principles that, since the time of the Constitution, have continued to develop in ways that strike a balance between tolerance and democratic will.
Something of a nitpick, Dewey: above you liken legal challenge to the “will to power” while likening lawmaking to the “will of the people.”
The will to power is a Nietzschean concept and has nothing at all to do with legal challenges: in fact, Nietzsche disliked almost everything about constitutional democracies. He was no more an advocate of the will of the majority (who in his view espoused a “slave mentality”) than he was of courts. What you’re really contrasting here is the courts as an institutional safeguard crucial to the process of striking a balance between liberal principles of tolerance and democratic principles of majority rule. To be brief, the will to power has nothing to do with either.
Now, briefly, as to your hypothetical question:
" Besides, it’s a hypothetical. I stipulated no powerful Christian Coalition because I wanted to isolate that as a variable."
The problem is that you ask me a question that involves my understanding the intent of the legislature. What was the intent of this non-Christian-right legislature when it chose to ban vibrators? Without knowing that, I can’t answer the question.
Sorry, Gorsnak, I didn’t realise you were specificallly speaking about the Canadian system. But going by your description, my comments still hold. Maybe I don’t understand you correctly.
You say the Crown attorney
In other words, the CA is hired by the democratic government to do its bidding. Wouldn’t the CA be going against the democratic government if he surreptitiously advanced his personal aims instead of doing what he was hired to do, to wit, defend the legislation of the democratic government?
If you are taking offence at such personal action being called ‘undemocratic’, fine, pick a less charged word. But it seems clear to me that there is nothing commendable in doing that. If the CA does not agree with the law he has to defend, he can choose to discuss it in private with his boss, or resign. What he cannot do is to stand in the way of the democratic government by refusing to defend it.
But maybe the CA in Canada has additional duties or a specific position in the state’s structure that I don’t know about. If so, it may be possible that Dewey is not aware of that either, which may explain the difference of opinion.
I should add the CA probably could hold a firmer stand in case the government wants to go against the rule of law. Being a lawyer, he has (at least in my opinion) a duty to uphold the law.
For a practical application of all this, read up on the Saturday Night massacre. You know, when Nixon tried to order his AG to fire the special prosecutor. The AG resigned; when his assistant received the same order, he refused and was fired. The next appointee, Bork, apparently felt his legal duty was not to uphold the proper workings of the system of checks and balances, and did follow the order. While I do not agree with Bork’s decision, I can see the reasoning behind it. And note that the AG in this case did not simply refuse; he felt he had to resign.
Well sure, but in the cases initially mentioned by Muffin which led to this thread of discussion, we’re not talking about a crown attorneys surreptitiously advancing their personal aims, we’re talking about justice ministries explicitly instructing their attorneys not to appeal decisions striking down laws. In these cases the person who has the final say as to whether there will be an appeal is not an AG as in the US, but a Minister of Justice, who is elected as a legislator, and not as an attorney. Hence, I fail to see any “undemocraticness” in, for example, Ontario’s recent declining to appeal the same-sex marriage decision.
Gorsnak: thanks for making this clear. I was entirely wrong in my reading of the remark of yours to which I responded. Serves me right for skimming through this thread. I’m really sorry, I should have been more attentive.
Having read the argument carefully, I find myself in fact in agreement with you and Muffin. I think Dewey may be influenced by the U.S. style of checks and balances. I presume that in Canada, like in The Netherlands, the courts are still respected as being in principle impartial defenders of the legal system and/or constitutional rights of citizens. In the U.S. it is rather different (in fact, that is what the OP was about). Therefore in the U.S. it is not a commendation to have the judges rule on the legality of a bill and certainly need not appease the voters. The U.S. public seems generally to hold the opinion that judges rule politically (the ‘realist’ position). See the book of Duncan Kennedy I refered to.
Commenting on this part, and reading Mandelstam and Polycarp’s posts made me realise that this thread has grown several heads, and should be carved up for proper discussion of its separate parts.
I’ll just remark that I do agree with Mandelstam that the AG should try to defend the laws equally, even the laws he doesn’t personally like. If this specific AG didn’t do that, that may be grounds for criticism of his functioning as a lawyer. Furthermore, as I said, my personal political opinion is liberal. I find the specific law under discussion abhorrent and do not find every law that has been passed by the democratic government good per se. I just wanted to stress (perhaps superfluously) that on the point of the AG defending a specific law, Dewey was correct.
With respect to Polycarp’s remark, that is intriguing. While it does ring a bell, it necessitates me to read up much deeper in U.S. legal history than I can do at a Sunday night (here in Europe). I’ll have to give it a rest now.
Dewey: what everyone else said about “banning” social conservatives – I’d love to do it, personally, but I don’t have that power at present. My personal goal IS world domination, but to tell the truth, things are going rather slowly on that front, and right now, it would be an improvement if I were to dominate an area the size of Rhode Island.
"What’s ironic is that the stipulation was added to the law purely by accident, and once it was passed several of the legislators were quoted as saying they had no idea how the ban had poked its head into being.
Yeah, legislators in my state do that. It’s called “lying your ass off after the voters catch wind of what you’ve been up to.”
I will point out that most Attorneys General of the states do take an oath to uphold “the law of the land” – either directly referencing the U.S. Constitution or incorporating it in that phrase (as it is, as self-described, “the supreme law of the land.”) Ergo, unless Alabama is an exception, Pryor is honorbound to uphold the U.S. Constitution. That does not mean that he is not entitled, like Dewey and myself and the others in this thread, to make arguments on what he considers to be constitutional or unconstitutional – that would be an integral part of his job, when the situation arises.
This is an absolutely wonderful statement, and I wish to go on record as agreeing with it in every particular, save for one minor semantic nitpick that is important to me personally. We (the U.S.) are not founded on secular principles but on humanistic ones – the “rights of man” of the American and French theorists of the time of the Founding Fathers. The distinction is important to me as a believing Christian opposed to religious-Rightery because I find myself commanded to uphold it by the “second [commandment] that is like unto [the first and greatest one].” Sorry for injecting a little religious debate into this constitutional-law discussion, but to me that is a key part of how I operate, and I am honorbound to hold up the rights of others, even those I disagree with most vehemently, as strongly as I would my own, by that very bit of Christian imperative that is for me the key to proper ethical behavior, inside a courtroom and out.
That is simply not the case. The “obscenity” prohibition was already part of the act when a 1998 amendment to the law added the language dealing with devices for genital stimulation.
Here is the statute, with the portions added by the 1998 amendment underlined (I am omitting language setting the penalty for each violation):
The clit-buzzer language was not something snuck into the code along with a prohibition to the obscenity law; it was deliberately inserted into the text, text which already proscribed the sale of obscene materials. The only part of the 1998 amendment having anything to do with the preexisting obscenity language is the addition to the sentence refining the definition of obscenity.
I think legislators claiming “oh my! I had no idea!” are just covering their own asses because they don’t like the way the press is spinning the story. The bill changing the law even includes the above underlining, so it’s abundantly clear exactly what text is being added to the law. They knew or had reason to know that the language was being added.