The courts can’t overturn 60 years worth of precedent? I submit to you McIntyre v Balentine, from the Supreme Court of Tenn, 1992.
Since the begining of their court system they’ve had a (with few exceptions) contributory negligence system. That means that if the plaintiff was negligent, even if the defendant was even more negligent, the plaintiff could not recover.
Basically, the court recognized not only that they were overturning centuries’ worth of precedent, but that they were pretty much screwing up all tort litigation in progress. But they did it because they felt that it was the right thing to do. I, for one, agree with them.
Clarence Thomas obviously believes that this, too, is the right thing to do. I don’t have an opinion one way or the other.
december: Griswold v. Connecticut wasn’t a commerce clause case at all, since it didn’t involve the powers of Congress. Rather, the Court struck down Connecticut’s ban on contraceptives under the Due Process clause. Specifically, the Court invoked a long string of “substantive due process” cases that held the states couln’t interfere in individuals’ rights to bear and raise children as they wish. The idea behind substantive due process is that the Due Process clause not only prevents the government from railroading people procedurally, but also from railroading them through laws that are substantively wrong. It’s the source of many of the Court’s most controversial rulings, and even I tend to think they’ve gone overboard in the SDP analysis, but there’s still a textual basis there.
Interestingly, if Congress had passed a law requiring states to allow sales of contraceptives, it almost certainly could have done so under the Commerce Clause. Contraceptives, after all, move through interstate commerce, and thus can be regulated by Congress. Nifty, huh?
(BTW, I always wondered why it is that fans of the 10th Amendment invariably focus on the reservation of rights “to the States respectively,” rather than the immediately following “or to the people.” Personally, I’d much rather have fit the Court’s substantive due process cases under the “to the people” part of the 10th Amendment instead of the Due Process clause. Oh well, guess it’s a little late now.)
True enough, but the important question is what they thought Congress could regulate, not what they actually regulated. So I’d say that looking to stuff they regulated is a good indication they thought Congress had such power, but that declining to regulate something doesn’t tell us whether Congress could regulate it.
Enderw24: Sure, courts can overturn precedent. They even do so on occasion, as McIntyre demonstrates. That doesn’t mean it’s a good idea.
The law that was rendered Unconstitutional by U.S. v. Lopez was 18 U.S.C. 922(q). It should be noted, however, that when this case was handed down, Congress quickly passed a “new improved” version of 18 U.S.C. 922(q) in which every major occurence of the words:
[li] “a firearm”[/li]
… was replaced with:
[li] “a firearm that has moved in or that otherwise affects interstate or foreign commerce”[/li]… thereby circumventing U.S. v. Lopez.
Ha! Didn’t know about that little fix Congress threw into the statute after Lopez, tracer. Thanks, and also for fixing my link. I just looked up the amended statute, and it appears Congress also added the findings section that the Lopez majority complained was missing. In addition, at least one federal appeals court (the Eighth Circuit) has determined the amended statute is constitutional. No surprise there, since the courts have long acknowledged Congress has the power to regulate pretty much anything that actually flows through interstate commerce.
Of course, now instead of an unconstitutional law, we’re left with a merely stupid law. I do wish Congress would get out of the business of federalizing as much local crime as possible. Unfortunately, when you’ve got a bunch of politicians in national office declaring that they’re gonna get tough on crime, the only way they can really do so is by passing laws that get the federal government involved. I hasten to add, though, that I oppose this trend because I think it is bad policy, not because I think Congress is generally exceeding its constitutional authority.
BTW, now that someone’s bumped the thread, I wanted to point out that I was a bit confused in my comments above about substantive due process vs. the 10th Amendment’s “or to the people” language. What I was really thinking of as a source of individual rights was the 9th Amendment: “The Enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Unfortunately, the Supreme Court has basically rendered the 9th Amendment a nullity.
Brown most certainly did not “distinguish” Plessy, and the exceprt quoted above does not even remotely suggest otherwise. Furthermore, I am well aware of the distinction between invalidating a statute and overruling precedent. Neither is a greater or lesser virtue or vice than the other. There are statutes that “deserve” to be invalidated and those that do not, just as there are precedents that “deserve” to be overruled and those that do not. One cannot say that Thomas’s concurrence in Lopez “blows as analysis” merely because he sought to discredit, rather than distinguish, “60 years of predcedent.” Not all precedent “deserves” to be “distinguished” (and assuredly Plessy would be one that did not); rather, they may “deserve” to be overruled. Stare decisis (somewhat like the rule that legislative enactments are presumed to be constitutional) is a venerable principle–but it is not an ineluctable rule. Trash Thomas if you like ON THE MERITS of his opinion–but not on his mere willingness to discredit authorities he deemed worthy of such treatment (unless, of course, you are prepared to show that those authorities were correct).
Uh, did I somehow fail to trash Thomas “ON THE MERITS” of his opinion? I’ve identified his failure in Lopez as an utter disregard of precedent. Sorry, but a cite to dicta in Laughlin Steel doesn’t cut it when there are at least a dozen Supreme Court cases interpreting the Commerce Clause that go the other way. Thomas was so selective in his quoting in that opinion that it borders on dishonesty. Mayhap that explains why he couldn’t even get such an ardent Originalist as Justice Scalia to join him in that opinion?
As for claiming that invalidating a statute on constitutional grounds is no better than failing to follow precedent . . . well, everyone’s entitled to an opinion, of course. But ever since Marbury there’s only one body that’s charged with interpreting the Constitution in this country, and it darned sure ain’t the Nebraska legislature. Legislatures, by their nature, are entiled, even expected, to change their minds on policy every time they take a new vote. I happen to think that the Constitution, the very blueprint of our nation, needs a hell of a lot more stability than 535 snot-nosed politicians in Congress are likely to provide.
Which leads me to my challenge to you, Rmat. I ask you to demonstrate where Brown reverses Plessy. Let me give you a running start by quoting, in full, every single point where Brown says anything at all about Plessy.
Nope, no overruling of Plessy there, although it’s pretty clear that the meaning of Plessy is in issue.
Hmmm, Plessy is a Fouteenth Amendment case involving “separate but equal” in transportation. But Brown is a separate-but-equal case involving public education. Gee, why would the Court mention the transportation/education distinction at all if they were passing on the entirety of separate-but-equal doctrine?
Wow, they reserved judgment on whether Plessy applies to public education in a previous case!
Oh my, the Court says there’s a difference between 1896 and 1954. Could they be “distinguishing” the two cases?
Gasp! There was different evidence in this case. Evidence that shows “separate” isn’t “equal” in education! I guess that means a plaintiff can show “separate” isn’t constitutional if it’s not really “equal,” huh? Quite a difference from Plessy, where the court decided that “equal” took care of any constitutional problems with “separate.”
I’m not crazy enough to argue that Plessy means much of anything in the wake of Brown. By recognizing that separate can be inherently unequal, the Court essentially killed that whole approach to race and the Constitution. But the Court most certainly did not overrule Plessy, which still stands for the proposition that separate and truly equal (throroughly unlikely as that is), at least within the realm of transportation, is constitutional.*
*Constitutional, yes. But still illegal by federal statute thanks to the Civil Righst Act and its many amendments.
This Plessy/Brown thing is getting silly. That Brown overrruled Plessy is beyong serious debate. Do you have access to Shepards Service or WestLaw Autocite or some other equivalent service? I guarantee you that it reports Brown as “OVERRULING” ruling PLessy, and that there are no fewer that a dozen post-Brown cases explicitly recognizing that fact, and scores of hornbooks and legal treatises that also characterize it in just those terms. Anyway, this is such a small point, and one that I’m happy to let it go if you are. If, however, you wish to insist that Brown did not overrule Brown and you are unwilling or unable to do the requisite research, I will – as a very special favor for you – do it myself and report the results here. But my offer stands: I’ll drop it if you will, and you can privately cling to your belief that Plessy was never overruled in Brown.
And now back to what matters…
Lopez is just one of a series of cases decided by the USSC in recent terms that reinvigorates federalist doctrine to a degree perhaps not seen since our nation’s founding. Throughout much of the past century in particular, it was the prevailing view among intellectual elitists (and this, in turn, a good segment of the federal judiciary) that there was no aspect of governance that could not be best performed nationally. The problem, of course, is that this point of view – whatever its validity in strictly operational terms – is wholly at odds with the model devised by the Founding Fathers for divided governance. Finally, we are no witnessing some restoration of the orginal model. I applaud it. Not that the states will govern with unfailing brilliance. (Which is also not that the feds have either.) But the Founding Fathers’ preference for divided governance was rooted only partly in a concern for vesting different policy choices in the hands of the most “competent” decisionmaker. Equally important was the concern was that power not be concentrated ANYWHERE.
Three cheers for the Articles of Confederation! Hip hip, hooray!
Like it or not, the founders were creating a system of government that concentrated much more power in a centralized federal government. Of course, that power has some limits, as Lopez demonstrates. But if the founders wanted to avoid all concentrations of power, why would they have written a constitution that gives the federal government unfettered power over everything erislover listed in the second post to this thread, plus a myriad of other exclusive powers? Whether or not the federal government exercises those powers depends on who the voters send to D.C. Nevertheless, there is no question that the federal government does have those powers under our Constitution, and that the individual states by and large play anything more than a supporting role at the whim of the federal government.
And I guess that’s really the answer to december’s question about what should limit the federal government today. The Constitution does give the feds huge amounts of power. Whether or not they exercise it is a function of who we elect to serve in Washington. Welcome to our democratic republic!
I had written a long discussion concerning Plessy and Brown, but the Web ate it, so to sum up:
minty and rmat, you are both right. The facts and issues addressed in Plessy dealt solely with transportation, and Brown did not touch that. Indeed, as demonstrated by the Freedom Riders, for example, transportation, at least in the South, remained segregated after Brown. However, Brown invalidated Plessy’s rationale - that seperate could be considered equal without a factual investigation into whether the particular public facility was in fact equal. And, of course, any such investigation would reveal that seperate is not and cannot be equal.
As for overruling precedent itself, Justice O’Connor laid out what I think is a very good rule in Casey. In Casey, the Supremes were invited to overrule Roe. O’Connor declined, noting that “[n]o change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for its overruling.” O’Connor went on to explain that in the cases where the Supremes had overruled earlier precedent, “the facts or our understanding of the facts” had changed. Casey, 505 U.S. 833, 835-36.
This is a good rule - precedent should stand until and unless its factual predicate has been demonstrated to be invalid.
minty, I think your reading of Art. I, Sec. 8 is a bit off. The Constitution does give a large number of powers to the Congress, but it wasn’t expected that these powers would be all that important. It’s the law of unintended consequences - they set up the rules in an era of an agricultural economy with no plans to establish a standing army. The same circumstances don’t apply today, but that doesn’t change the powers invested in Congress, and it can strongly be argued that the fact that these powers invested in Congress allowed for the conditions that exist today - heavy commercial activity, general prosperity, and a strong military.
Yeah, Sua, you’re probably right that the changing economic conditions of the USA have led to greater exercise of power on the part of Congress. After all, giving Congress the power to regulate interstate commerce in the 1780’s didn’t necessarily give it a great deal of actual power, since there was comparatively little interstate commerce going on. A couple centuries later, though, there’s a whole lot of interstate commerce, and all of it can be regulated thanks to that same Interstate Commerce clause.
Still, the guys who wrote the Constitution were doing so with the goal of expanding federal powers, as the weak federal government under the Articles had led to all kinds of problems. The taxing power and the regulation of interstate commerce were especially crucial to their idea of how the new federal government should function, which is why they created such broad powers. That the Congress of today has exercised those powers far more than the founders would have preferred seems pretty clear, but that by no means indicates Congress has exceeded its authority in doing so.
It most certainly does mean that if one assumes, as we must, that the Founders gave their “preferences” prescriptive force in the Constitution.
I confess I am somewhat baffled by the reference to the Articles of Confederation. Concentration of power is not an absolute condition, but one that exists in degrees. That national powers are more concentrated under the Constitution than they were under the Articles is beyond dispute, but that hardly establishes that the Constitution provides for no diffusion of power, or even very little diffusion of power (except in a relative sense) Indeed, as Lopez and other recent cases show, it provides for a good deal more diffusion than we have witnessed in the last two generations or so. Again, I applaud this, no so much because I think it will necessarily make the nation run more smoothly or equitably, but because it is faithful to the Founder’s vision–a vision with which we are “stuck” (and I don’t mean that pejoratively).
I think that when courts overrule earlier cases, they frequently pretend that they are merely “distinguishing” those cases so as to pay homage to the principal of stare decisis.
If anyone seriously believes that Plessy v. Ferguson has not been overruled, I invite them to consider what would happen if the State of Louisiana passed a “Separate Car Act” today (with the blessing of Congress).
Perhaps a better example is the so-called “Lochner Era,” in which the Supreme Court invalidated all kinds of minimum wage laws and similar laws on the basis of the constitution.
I believe that one or more of those “Lochner” decisions have been explicitly overruled.
Good lord, Rmat, that’s a mighty stretch. The beauty of the Constitution is that the FFs realized that things may change, and accounted for them.
Let’s look at the source of so much dispute, the Commerce Clause. As I noted, the primary reason the FFs included the Commerce Clause was fear that the seaboard States would impose tariffs on goods transported from the inland states for export. Thus, they inserted the Commerce Clause (and, for the same reason, placed all navigable waterways of the U.S. under the control of Congress).
However, if all the FFs wanted to do was prevent internal tariffs, then the Commerce Clause would have read “No State shall impose tariffs or excise taxes on goods and commerce imported to or exported from that State.” (Course, they would have made it sound more archaic. ;)) They did not take this option.
Instead, the FFs gave Congress exclusive jurisdiction to regulate interstate and foreign commerce. Their “original intent” was to allow Congress the exclusive authority to deal with other issues relating to interstate and foreign commerce not foreseen by the FFs.
If you wish to determine the Original Intent of the FFs look to the language of the Constitution - and think about what they could have written instead. The FFs were very precise - almost everything in it is a much-debated compromise.
Well, sure. To a point. But whatever unforeseen circumstances the FF hoped their model would provide the means to resolve, any future ALTERING of the fundamental balance between state and national power was beyond their contemplation. Changing times arguably justify a little tinkering with constitutional doctrine on the margins; if that’s your idea of a “living constitution,” you’ll get no argument here. But the constitution of, say, William Brennan (for whom I have ample admiration, btw) would be unrecognizable to the FF. The one of today – post-Lopez, post-Seminole Tribe, etc. – would be somewhat more familiar
