But I can’t own a slave?
Pissy parting shot, but eh…
I did a long dissertation to December on the distinction between statute law and “the law” as the term is used in jurisprudence, and why “judicial lawmaking” is essential to a working court system – but the hamsters are feasting on it.
Minty, you wanna take a stab at explaining it?
I did a long dissertation to December on the distinction between statute law and “the law” as the term is used in jurisprudence, and why “judicial lawmaking” is essential to a working court system – but the hamsters are feasting on it.
Minty, you wanna take a stab at explaining it?
And they sent that one through twice. I think the hamsters are exercising “rodential activism” rather than “rotential self-restraint” tonight!
So…the Supreme Court shouldn’t have voted as it did in Brown v. Board of Education because that required overturning a prior decision, Plessy v. Ferguson? Are you seriously suggesting that “separate but equal” should have been the law of the land unless a constitutional amendment changed it?
Even the strictest of strict constructionists don’t find that view palatable. Stare decisis is important, but let’s not make a fetish out if it.
Look, this whole hijack of the discussion is silly. Minty, et al, are correct when they say that judicial opinions are correctly described as “law.” And december is correct, in a sense, in saying they should be treated differently from statutory law – what he means to say is that adherents of strict constructionism are less concerned about courts overturning past judicial decisions and are more concerned about judges reinventing the primary text they’re ostensibly interpreting (i.e., the Constitution or federal and state statutes).
There’s a good reason for that distinction. One of the primary reasons strict constructionists interpret the Constitution and statutes in the way that they do is out of respect for democratic principles: the basic point is that a judge shouldn’t substitute his vision for that of the Founders (or legislature, as the case may be), because to do so infringes on the notion of democratic self-governance. That is clearly less of a concern when dealing with prior federal judicial decisions which were themselves insulated from democratic decisionmaking. Ergo, a strict constructionist will not find overturning prior decisions terribly objectionable, and in the case of those decisions he considers to be activist in nature will in fact demand that the decision be overturned.
In any event, the two camps here are just talking past one another. A little more precision (yes, december, I’m lookin’ at you) is in order.
In point of fact, Brown did not overrule Plessy. “Separate but equal” is still constitutional. Brown simply took the rather important step of determining that “separate” is inherently unequal.
<B>Minty</B>, just an FYI, I woke up to the odd taste of shoe leather this morning. I stand corrected.
Jeff2
Would you be surprised to learn that I very much agree with that principle? The problem, of course, is determining what the intent of those people really was. It’s not like “due process” and “equal protection” are self-explanatory, you know. The people who wrote and passed the 14th Amendment knew that judges would have to give it meaning in individual cases, and in fact intended to empower them to do so.
That’s not a license to just make shit up, of course–but it is a license to enforce the law in accordance with the borad principles that the drafters/ratifiers had in mind in the 1860s. Although I disagree with some of the details (personally, I would have used equal protection much more than substantive due process, but the court went off the rails on that one with the Slaughterhouse Cases), I am generally comfortable that the broad outlines of 14th Amendment jurisprudence are indeed within the parameters intended by the Radical Republicans who created it.
(P.S.–How’d the bar go?)
The borad principles? Blowing Off Republicans And Democrats? 
BTW I was not familiar with the term “constitutional laws.” Thanks for the education. It’s ironic that “constitutional laws” are not mentioned in the Constitution. Maybe they should be called “unconstitutional laws.” 
“Constitutional laws” as opposed to “statutory laws” or “common law.” The adjective merely describes the source and weight of the legal authority.
FYI, December, it’s a standard term in comparative government to describe whatever document or documents set forth how a government is supposed to be structured and to function, and usually whatever rights are retained by the citizens and protected from abridgment by that government. A quite common equivalent term is grundlag, the Swedish for “ground law” (in the sense of “underlying,” not in the sense of “legal hamburger”), a distinct category of Swedish laws made difficult of passage, amendment, and repeal for precisely the same reasons as the U.S. Constitution is. IIRC, Sweden has five documents that are grundlagen.
But quite simply, what I attempted to address is that the idea of “law” as understood by practitioners of it does not equal “statute law.” Short sermonette follows.
All rights and powers are vested in the sovereign people of the United States. In order for the common defense and general welfare, by common consent they organized states and accorded them powers, declaring themselves independent of the tyrannical king whose ancestors had sent theirs to colonize this continent. Since no single state was a particularly strong political entity, and some were so tiny as to be barely viable, the states in turn ceded a part of their sovereignty to a federal government. All rights are retained by the people – although they are abridged by the powers vested in the state governments and by the powers specifically delegated to the federal government.
The Constitution paints this framework, specifying what rights may not be abridged, what powers are delegated to the federal government, what powers may not be exercised by any government. Note that the states retain all sovereignty not delegated to the federal government nor barred to them by specific prohibitions. Within its delegated powers, the federal government is supreme, and the Constitution claims itself to be “the supreme law of the land.”
Each state has its own constitution. Both the federal government and the states pass statutes in accordance with the powers vested in them. The President and the state governors retain the right to issue Executive Orders with the force of law which give effect to powers inherent in their offices. And, because society today is complex, each has passed a number of statutes that in turn delegate to the executive the right to issue regulations in conformity to statute specifying what the application of the general principles in the statute shall be. For example, the statute may provide that only minimal amounts of a toxic substance may be released into the environment; the federal or state environmental protection agency then spells out for each possible toxic substance what quantity may not be exceeded to qualify as “only minimal amounts.” This quite closely parallels the idea that broad principles spelled out in the constitution are given specific effect by the passage of laws.
And, when it is claimed that someone has violated the law in some way, they are brought before the courts to answer for the accusation. This can be a criminal action, or it can be a civil one, as in the situation where one allegedly fails to carry out the terms of a contract with another, who sues him, or where one allegedly commits a tort against another or his property.
Now a judge’s duty is to apply “the law” as it stands to specific cases which come before it. But what is “the law”? Well, Marbury v. Madison has made it very clear that the Constitution is the supreme law of the land, and that anything else that anybody does must conform to its provisions. Within that overarching edifice, a great deal of possible legislation has been passed – some of which targets specific problems and may fail to take into account a provision of the Constitution.
And, of course, legislators being what they are, more than once a law has been passed that sounds beautiful but fails to make clear what exactly the analogue to motherhood and apple pie that it seeks to exalt and protect actually is.
It is the job of the court to look into what is claimed by the parties to the case or controversy before it, and to make a judgment according to “the law” – meaning not the specific statute but the 225 years of American precedent as to what “the law” actually is. In doing this they tend to give great deference to what previous courts, especially courts higher than themselves, have said in similar cases.
But it always comes down to, what does the “law of the land” have to say about the particular case brought before the court? And in making a ruling on that question, the judge makes law – he adds his decision in that particular case to the body of precedent that guides each judge thereafter.
I think it’s important to note in this context that the question of constitutionality is done on a case-by-case basis, and the ruling does its best to express to what degree a given regulation or statute conflicts with the constitution. In the Pledge case we’ve been arguing about in another thread, not the Pledge itself, enacted by two federal laws, but the regulation of a local school board, acting under the aegis of the powers delegated it by its state government, requiring its recitation was declared unconstitutional. To give you a precise parallel, I think anybody’s answer to the question, “May a state government enact a law changing the city-limits boundaries of a city within that state?” would be “Yes, of course, unless they’ve delegated the power to the city itself, and even then they could take the power back if they chose.” However, the SCOTUS found that the act of the Alabama legislature in redrawing the boundaries of Tuskegee in such a way as to leave every black household formerly within the city outside it, was a violation of those people’s civil rights – while the principle of the law itself was constitutional, it had been unconstitutionally applied.
And this governs any judge in any court. The New York Association of Towns has a couple of publications that equip local justices, who may never in their lives have taken a course in law, in how to write an opinion that will stand up under appeal. Because even if someone is haled before that court for a misdemeanor or petty violation or traffic offense, or sues for a petty amount within that court’s civil jurisdiction, the J.P. needs to make a ruling based on the law – which can, if so alleged, include the application of the U.S. Constitution to that case.
For SCOTUS judges in particular and for appellate judges generally, questions that reach that level are not clearcut ones where the application of a clearly written statute of assured constitutionality is at question – those cases are disposed of in lower courts. The issues turn on the application of more broadly based principles – has the appellant been deprived of the “due process of law” guaranteed him by the Fifth and Fourteenth Amendments by the application of the statute in question under the circumstances of the case being appealed? Whatever decision the judge(s) make(s) is “making law” – it’s specifying how the “law of the land” – not just the statute in question – applies to this particular case, and will serve as precedent for another court.
It’s in that context that the questions about Estrada’s judicial philosophy become so vitally important. How he reads the constitutional guarantees, how he interprets the statute (which, remember, at an appellate court level will rarely be a clearcut “the clear meaning of the text is…” issue), how much deference he gives to precedent – all these are very vital questions to ask, and ones on which he deserves to be evaluated.
I think we can agree that it’s unfortunate that this has become a political issue. But I submit to you that the origins of such a situation are not hard to find, and that they reflect very negatively on the party you customarily defend here. I suggest that you write any letter of criticism, not to the incumbent Democratic senators, who are, of course, following precedent, but to the former Senior Senator from my state, who set those precedents during his 30 years in the Senate. He lives not 25 miles from me, and I’ll be glad to obtain and provide you with his address if you choose to complain.
That simply is not the case. Brown v. Board of Education, 347 US 483 (1954):
Lest you think they were just limiting Plessy’s reach to an area it had not yet been extended, note that in two prior cases – Cumming v. Bd. of Ed. of Richmond County, 175 US 528 (1899) and Gong Lum v. Rice, 275 US 78 (1927) – the court explicitly approved the Plessy doctrine in the area of public schools.
I can think of no other interpretation than the court is in fact overturning Plessy without explicitly using the words “we overturn.”
This is abundantly clear when one considers the stream of summary opinions that followed in Brown’s wake which ordered desegregation in virtually all areas of public life, and which if they have any discussion at all merely cite to Brown without much further elaboration as justification for the ruling. See, e.g., New Orleans City Park Improvement Association v. Detige, 358 US 54 (1958) (public parks and golf courses), State Athletic Commission v. Dorsey, 359 US 533 (1959) (athletic contests), Turner v. Memphis, 369 US 350 (1962) (municipal airport restaurant), Johnson v. Virginia, 373 US 61 (1963) (courtroom seating), and Schiro v. Bymum, 375 US 395 (1964) (municipal auditorium). (Dammit, I’m not coding URLs for each of those :))
Brown and its progeny are a source of endless fascination for me (can you tell?). There are so many problems with it – from the intellectually bankrupt psychological studies the court claims it relied on in reaching the decision, to its obvious ploy to use whatever constitutional tool happens to be convenient (see, e.g., Bolling v. Sharpe, 347 US 497 (1954), decided the same day as Brown and dealing with the D.C. public schools), to it’s chicken-shit “all deliberate speed” cowardice in the Brown rehearing the next year (349 US 294 (1955)). And yet, most folks agree (including me) that the end result is correct, even if the road taken to get there is somewhat lacking.
But to get back on-topic (well, on topic for the original hijack): there are any number of areas where the court has overturned its prior decisions. Try arguing the “clear and present danger” test in a free speech case. Or consider the evolution of the commerce clause: Hammer v. Dagenhart, 247 US 251 (1918), held that the commerce clause did not allow the federal government to try to curb child labor, and was explicitly overturned by US v. Darby, 312 US 100 (1941).
I agree it doesn’t and shouldn’t happen very often, but sometimes the court can and should overturn its prior decisions. Stare decisis is an important principle, but it shouldn’t be the alpha and omega of Supreme Court jurisprudence.
No I’m not surprised, and I’m not trying to hijack this into a discussion of the precise meaning of “strict construction.” My point was just that a strict constructionist would naturally be more comfortable with the overturning of a prior judicial decision than with a radical reinterpretation of the Constitution or a statute because the former does not implicate the same principles of democratic self-governance in the same manner as the latter.**
Eh, who knows. I had to shuffle my way across ice to get to the testing center.
Now I’ve just got to deal with that pesky unemployment issue.
As you say, the Court did the right thing for perhaps the wrong reason.
Adding to your eloquent post explaining the distinction between statutory and constitutional law, there’s another reason for the SC to give less support to Consitutional law: Giving total support to Consitutional law has the effect of giving the most power to those judges least deserving of it. E.g., Justice Douglas believed in legislating from the bench, improperly IMHO. If judges who take their oaths more seriously continue to defer to Douglas’s decisions, then his judicial abuse winds up having more control of our lives than does the propriety of those Justices who rule properly.
Polycarp, I appreciate your description of the judicial review process. I agree with most of it, but strongly object to your comment,
This smacks of blaming the victim. You have offered this charge here without support or explanation.
Nice use of selective quoting there, Dewey. If, however, you had quoted the language immediately preceding what you quoted, you would see that Brown is exactly as I described it:
To wit, they determined that separate is inherently unequal.
In fact, further perusal of the case reveals that the plaintiffs were not even arguing that “separate but equal” is unconstitutional:
The Court also explicitly states that the inquiry is about the equality of the separate schools:
Nowhere, not even once, does Brown state that “separate but equal” is unconstitutional. It holds that, at least in the case of education, separate is not equal.
In fact, the Court specifically states that "In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. " I.e., we ain’t overruling a damn thing. we’re just taking a different path than the previous case might have taken.
The Supreme Court hardly ever overrules itself. It clarifies its previous decisions.
This is interesting.
Seems that when the shoes were on the other feet…
As was pointed out on Salon: whether you support or oppose the attempt to end the filbuster, George Will has a collumn passionately lambasting your position!
George Will was not quite as inconsistent as Salon claims. His earlier column was about filibusters of laws, which have a long history. His recent column is about a filibuster of an appellate judge, which is unprecedented.
However, I must admit that the legal theory barring the latter type of filibuster would also bar the former type.
The underlying notion here is about as bizarre as I’ve ever seen voiced on this board – it’s been fundamental to American jurisprudence since at least 1803 (and I can find an example or two from before then, one by my state’s own Justice Iredell) that the Constitution is what it asserts itself to be: “This Constitution [and material done in Pursuance thereof] shall be the supreme Law of the Land.” If a statute does not conform to the constitution as SCOTUS understands it, then it’s null and void.
Perhaps you wish to “free us from the tyranny of SCOTUS.” But I guarantee that you’ll have an immense amount of opposition, from all sectors of the political spectrum.
Justice Douglas took a very expansive view of what the constitutional provisions regarding personal rights entail. Whether he was right is neither here nor there. But I find this characterization of him as offensively absurd as one of Sweet Willy’s posts must have been to you.
I believe that the next sentence I wrote after what you quoted alluded to the Honorable Jesse Helms, noted for blocking appointments by the immediately previous President. But, of course, being a Republican, he is without sin. :eek:
Cute. You expended a lot of words and energy to say something I included in my prior post: that the court did not explicitly say it was overturning Plessy.
Well, so what? Just because Brennan, et al, were intellectually dishonest enough to say they weren’t doing exactly what they were in fact doing (namely, overturning Plessy) doesn’t mean we have to swallow the court’s bullshit.
I mean, seriously. Follow the twisted logic and tell me this makes sense:
-
Plessy is nominally good law, and separate but equal is constitutionally permissible.
-
However, under Brown we find that separate cannot be equal in the realm of public education, even if the facilities, funding, etc are in fact identical, due to the pyschological impact of racial segregation.
-
We then have a long line of cases that require desegregation in other areas of public life with a mere cite to Brown as justification; thus, in each of these areas, even if the facilities are equal by objective standards, they are still unequal for psychological reasons.
-
Which leaves us with…what? In what bizzarro universe situation could Plessy be used to successfully defend racial segregation? I’m honestly at a loss. Maybe my imagination is just too limited, but I can’t even imagine a situation where government-sponsored segregation could fulfill Plessy while not running afoul of Brown.
Brown says that “separate but equal” is effectively a logical impossibility: that “separate” and “equal” are mutually exclusive propositions. It essentially says that the rule announced in Plessy cannot possibly be applied in the real world. That being the case, it is intellectually dishonest to suggest that the court wasn’t overturning Plessy – what else to call it when a prior rule cannot be applied to any future cases, ever?
I don’t give a good goddamn how loudly the court proclaims it’s fealty to precedent; I look at what the court actually does. The judiciary slings just as much bullshit as the other two branches of government. I swear, sometimes I want to go back in time to slap Brennan silly and ask him “do you really think I’m so fucking stupid that I wouldn’t notice you’re saying one thing and doing another?”
Actually, I can think of circumstances where the difference between “separate but equal is constitutional” and “separate is not equal” really could make a difference in the outcome of the case. I readily concede that Plessy is effectively dead–but it’s dead because the Court and the country moved on, not because the Court stuck a well-deserved stake in its heart. Personally, I would have killed that sucker dead once and for all, but that just goes to show every lawyer has a little judicial activism at heart.
(And that’s my last word for the next several days. This time tomorrow morning, I’m swimming with sharks in the middle of the Gulf. Y’all have fun tidying up this thread. )