Cut the bullshit, Dewey. I’ve already told you and Bricker what I thought of the Lochner decision. I’m not ignoring history. I recognize the historical trend towards more liberty in the Supreme Court’s decisions. There may be fits and starts; but the progress is evident. It’s nothing but alarmist drivel to suggest that the court, or society even, is regressing in the direction you suggest. If Bush and the Religious Right get their way and pack the court, then the inevitable march towards liberty will be slowed somewhat; but never stopped.
“Liberty” is in the eye of the beholder. Again, there was a time when the liberty interest the due process clause was applied to was “freedom to contract.” And with the right appointments, it can certainly happen again – all in the name of liberty.
I don’t think that’s the right way to go about things. I dislike minimum wage and maximum hour laws for the soundest of economic reasons, but I don’t think that is a policy choice that ought to be put into play by judicial fiat. Niether should gay marriage. Process matters, and it should not be discarded when it becomes inconvenient.
But there is a stark contrast between the denying civil liberties such as marriage to people based on innate characteristics such as race or sexual orientation and the economic issues of minimum wage laws. It’s absurd to compare the two.
Why? I can couch the economic freedom argument in the same syrupy language as, say, abortion rights (to choose an example that you are presumably less emotionally tied to). Why is the finding of abortion rights as a matter of substantive due process any more legitimate than the finding of freedom to contract?
If it’s all about freedom, baby, why is my freedom to feed myself and my family less important than the freedom to terminate a pregnancy? Other than Because Homebrew Says So?
More to the point, what are tha parameters of judicial power in such a scheme? What are the limits of substantive due process, and upon what basis are those limits derived? If SDP means the constitution protects any freedom a judge feels sufficiently important, regardless of its connection to the extant text, what limits are there on judicial power?
Activist judges largely GOP appointees
This seems as good a place as any for this little revelation…
Either the Devil needs a better Advocate or you really are inept.
If you can’t tell the difference between the right to have control of your own body and a regulation of commerce - which the Constitution clearly gives Congress the right to legislate - then you are too stupid for me to enlighten. I’m not Cecil afterall.
The limits aren’t on the judges. The limits are on what Congress has authority to legislate. The judges keep the legislature in check. Congress doesn’t have absolute authority, only that given by the people. It has repeatedly tried to overstep it’s authority and the Courts are there to protect against that abuse of power. Furthermore, it’s asinine that you keep claiming that “any judge” can declare a binding decision. Sure, “any judge” can make a ruling that recognizes a right not previously protected. But until it is decided by the Supreme Court, it’s not binding on the whole nation. That’s why we have a panel of judges called the Supreme Court. Ultimately, they are charged with the duty to determine if the Congress has overstepped the limited authority it is given. It’s not a matter of judges declaring newly minted rights. The issue is judges ruling that the government must have a reason and the authority to legislate on an issue.
As you are so fond of pointing out, The Supreme Court is pretty lenient on that issue only requiring a rational basis in most cases. It’s fairly easy to give a rational basis for the economic reasons for a minimum wage.
O ignorant one, yet again you demonstrate your foolishness.
The laws at issue in Lochner and its progeny were not products of federal legislation. They were state laws. Lochner in particular dealt with a New York law regulating the number of hours bakers could work within New York state. The commerce clause was not the locus of power to enact those regulations – it was the state’s general police power serving that purpose.
Even if it was Congressional legislation we were dealing with, the due process clauses of the fifth and fourteenth amendment were, well, amendments – to the extent they conflict with existing constitutional text, the amendment would trump. Even if we stipulate that the federal minimum wage is a proper exercise of Congressional power under the commerce clause, a judge using SDP and Lochner-type reasoning could invalidate the minimum wage law on freedom of contract grounds because the amendment is later in time than the commerce clause.
And as to your last point – frankly, the state perpetuates restrictions on my right to have control of my own body all the damn time. Just try to smoke a joint in front of a cop if you don’t believe me. Or have sex for money. Or commit suicide. I’m not sure why my right to earn a living and provide for my family ought to be seen as any less important than your right to control your body.
That is precisely the problem with what you advocate. All three branches need to be effectively checked, not just the legislative and executive.
Of course, the problem with what you advocate is that you seek limits on the Congress that “the people” never gave in the first place. That is why you rely on creative interpretation rather than the amendment process – you want to avoid dealing with “the people” rather than respecting the authority they have granted to their government.
Fine, fine, so “five judges” can create a right out of thin air. Not a huge difference. You stil have the problem of unbound power exercised by an insular, unaccountable group of five.
(And frankly, there isn’t much to say about the lower courts – the Supemes can create a right rejected by the courts below them by reversing the district and appellate courts in the case before them).
You conflate equal protection arguments with SDP arguments. When SDP is used to create new rights, rational basis inquiry is irrelevant because the new right created is deemed “fundamental.” Hence a fundamental right to abortion, or, in an earlier era, a fundamental right to contract.
If all there was to deal with was rational basis, then all of these restrictions – contracting, contraception, abortion, what have you – would be valid, because there are rationales for each that easily satisfy that low level of inquiry.
Oh muddleheaded one, yet again you demonstrate you are incapable of following a discussion. The topic was Minimum Wage Laws, which ARE a federal regulation.
But they aren’t compelled to, so you are just raising a Slippery Slope argument. If the people really do want the government to have the authority to regulate a minimum wage, and judges rule as you warn, then they still have the amendment process.
I’m not certain of your point. I don’t think the government should have the power to ban these things. Although, I’d grant regulation - not prohibition - of prostitition could fall under the purview of the state. In any case, though, setting minimum wage doesn’t constitute a ban on your right to earn a living. Regulating and banning are seperate issues.
Of course I want limits on what Congress can do. That’s not the problem. The problem is overzealous nincompoops in the Legislature overreaching their authority. I don’t see the Supreme Court doing anything but being a check in the checks and balances system. They haven’t overstepped their authority. Certainly, you can find decisions on which I’ll disagree, but I respect their authority to decide.
If enough people disagree with any of the newly protected rights or other limits on Congressional power, they are still free to use the amendment process to make their will clear. Fortunately, it’s difficult to muster the necessary super-majority to amend. This helps prevent hasty, ill-thought notions from being enshrined in the Constitution, Prohibition not withstanding.
Judges are checked in many ways. They can’t enforce their decisions without cooperation from the Executive. They can’t rule unless a lawsuit is filed. They can’t rule without jurisdiction. Most importantly, the people have the amendment process if there is sufficient disagreement.
This is what it all comes down to in the end. You seem to think we are all wards of the state and that “rights” are granted by the majority. If that’s your POV, then I can understand why you think judges are “inventing” rights. However, I take a more libertarian view that we are free to do as we choose unless we’ve given the state specific permission to govern an area. So newly protected rights aren’t “new” just “finally protected” and unjustly imposed upon previously. The march to maximum freedom is on. The total power you’d grant the Majority is a form of tyranny and is as Authoritian as a Dictatorship. Minorities are still subject to abuse in your system with no way to appeal to a sufficiently powerful authority to protect themselves.
Actually, all but seven states have their own minimum wage laws. Yes, there is a federal minimum, but it’s silly to suggest this is a federal-only sphere of legislation. Doubly so when you consider that Lochner and its progeny – real-life cases dealing with real-life situations – dealt with state laws.
That’s cold comfort to anti-sweatshop advocates. But more to the point, listen to what you’re saying – you’re saying it’s OK if the courts are demonstrably wrong in deciding an issue because the amendment process exists. That’s absurd. The courts should strive to get it right, not do whatever they want and then punt to the body politic.
Are you seriously arguing for the existence of a constitutional right to shoot heroin? To off oneself?
The power to regulate is the power to ban by other means. Indeed, IIRC, controlled substances technically aren’t “banned,” but rather require bureaucratic approvals that the government simply won’t give.
And of course, minimum wage regulations do adversely impact an unskilled laborer’s ability to provide for himself. Higher wages, set above what the market demands, reduces the number of available jobs.
In order:
- This advocates the deliberate instigation of constitutional crisis as a preconceived check on the judiciary. Not tenable.
- Yeah, and it’s so hard to find plaintiffs for the issue du jour. :rolleyes:
- The courts have jurisdiction on constitutional matters, and even to the extent Congress controls that jurisdiction via the exceptions clause, the courts ultimately rule on the constitutionality of those limits. This isn’t a real check.
- True, but absurd for the reasons I outlined above.
Your view encompasses notions of preexisting “rights,” as though they are things which are discovered rather than created by the hand of man. Which is utter bunk. Rights don’t exist in nature. If they do, prove it – go outside and bring me back a big bucket 'o rights. I’ll be waiting to see what you’ve discovered.
If, as you point out, several states and the federal government have minimum wage laws and they’ve been upheld, then what is your point but a slippery slope arguement? I didn’t argue that it’s a federal-only issue, moron. I specifically mentioned federal minimum wage laws and didn’t address state level laws. You are being dishonest by misrepresenting what I’ve said. Furthermore you are the only person contending that the judges would change their minds on this issue again after it has been so clearly decided that minimum wage laws and regulation of workplace safety is a proper sphere of government action.
And yet you clamor that that’s the only way for gay folks to obtain the right to marry. Thanks for stripping away any argument that you weren’t a bigot you had left.
That’s a whole other debate and a red herring here. The issue under discussion in this thread is discrimination against a group which violates the 14th Amendment on it’s face. It’s telling about your mental capabilities that you can’t tell the difference between an accross the board rule that applies to everyone equally and legislation that actively discriminates against a minority.
Rich irony coming from a theist. Go bring me a bucket of God.
Go argue with Jefferson and Locke.
Running into the fallacy of equivocation, here.
“Rights” as in natural, God-given (or whatever-given) rights are different from legal rights.
A legal right is a right that is enforceable because a remedy exists.
The “natural rights” certainly exist, but you and I almost certainly disagree on what they are and who they belong to. I’d argue that an unborn child has as much right to live as a born child, for example, but I’d be speaking of natural rights. At law, that unborn child (or his successors in interest, or scoiety as a whole) do NOT have a remedy to protect that right.
You may argue all you wish about what rights truly are “natural rights.” But even more important is to argue about what natural rights ahould be recognized at law.
If you argue that ALL natural rights should be recognized at law, then you don’t leave much framework for how we should write the law – since we cannot point to a definitive list of all natural rights.
- Rick
The point, my dear boy, is that you are inconsistent. You essentially think the judiciary should be given free reign to do whatever they please regarding the creation of rights, but refuse to acknowledge that this line of reasoning can just as easily uphold nefarious “rights” as it can rights you agree with.
It bears repeating: the laws at issue in Lochner were state laws, and thus the commerce clause was not the locus of power for enacting them. Thus, your invocation of federal minimum wage laws and the commerce clause was wholly irrelevant. You apparently cannot grasp this simple point, to your great discredit.
I’m not contending that they “will” do so, I’m only contending that your justification for the use of judicial power could quite easily be used to justify results you find distasteful.
You are either an idiot or a liar. Or both. I have never claimed that the only way for gay folks to obtain the right to marry ought to be by constitutional amendment. Indeed, I have been quite clear that the constitution is silent on this issue, and that the appropriate place for gays to attain the benefits of marriage is via ordinary legislation – i.e., by changing the laws regarding marriage of each state.
And it’s quite telling that you can’t distinguish between an argument based on substantive due process and one based on equal protection. The cases we’ve been discussing – Lochner, Griswold, Roe, etc – aren’t equal protection cases, they are substantive due process cases. It’s irrelevant that minimum hour laws apply to everyone just as it’s irrelevant that contraception laws apply to everyone – both were struck down on due process grounds, not equal protection grounds.
The difference, of course, is that I don’t demand that everyone else recognize the existence of God.
If you want to personally believe that rights preexist, fine – that’s your prerogative. But the instant you demand that the rest of the world conform to the worldview demanded by those rights, you’ve crossed a line.
Gee, appeal to authority much? Hey, you don’t believe in God – go argue with Thomas Aquinas or Martin Luther.
This is essentially empty rhetoric, a poetic flourish designed to give more authority to notions of “what I want.”
There is literally no difference between saying “I think it would be a good idea for people to have free speech” and saying “we have a natural right to free speech.” The latter just masks your own desires with authoritative-sounding “rights-speak.”
Again: if “natural rights” exist in some fashion apart from our own wishes and desires, and only need “discovering,” then go bring me a big bucket of rights.
I have repeatedly acknowledged that that is a possibility. I have also given my opinion on the remedy. If your reading comprehension skills are as pitiful as you’ve displayed here, it’s a wonder you graduated high school, much less the bar.
You display an incredible lack of ability to understand points beyond the specific discussion of a specific case. I am not interested in nor was I engaged in a discussion of specific cases that you listed. I was talking about principles and themes.
This demonstrates further that you are unable to expand your ideas and the outcomes past the end of your nose. If gay people aren’t allowed to marry in every state, then we aren’t truly equal. The only way to secure that right, under your ideas of jurisprudence, is through a Federal Constitutional Amendment. Without that, then Texas could ignore the marriages of Vermonters when they are in the state. The effect of your idea that rights are granted by government leaves no other option.
In a discussion of politics, referencing such politically important thinkers as Jefferson and Locke is not a fallacy.
Bricker has now joined the fray, I see. Not surprising since you two seem to travel together. Not unusual considering your interests. At least you usually bring something to the discussion that is worthwhile.
I somewhat agree.
I mostly disagree. We have the framework. It’s called The Constitution of the United States of America (different for other nations, of course). I believed the Three-Tiered Approach that has evolved through the years is a fairly reliable and workable method of determining which natural rights are to be protected. Naturally I’d include some that you wouldn’t. I’m willing to have our relative positions argued before judges and abide by the decisions. Romer and Lawrence both give me hope that I’ll win more often.
Nifty. So if, say, a series of uber-conservative nominees find their way onto the court and goes farther than merely invalidating Roe by finding that an unborn child is a person owed protection under the fourteenth amendment – effectively making abortion constitutionally forbidden – you’ll be just peaches with that result, and tell abortion proponents that they need to seek an amendment as recourse, right?
Somehow I doubt it.
This is such a pathetic point, and yet you raise it every time questions about the constitution and the role of the judiciary arise. What you are basically saying is “hey, I don’t want to get bogged down with all that law stuff – I want to keep talking in terms of glittering generalities.” Which is dumb. You can no more intelligently talk about judicial issues without reference to the law than you can intelligently talk about globalization without reference to economics.
In fact, that’s a good analogy. You are the WTO protestor of legal discussions – eager to float nice-sounding but empty rhetoric, but unwilling to seriously address the particulars of an issue. Your unwillingness to get down to brass tacks is an indictment of your abilities, not of mine.
Not true. The same effect can be had by winning victories in the statehouses of each state, and in repealing the DOMA and extending federal marital benefits to gay couples via congressional legislation. All of which I wholeheartedly support, BTW – which is an odd position for a “bigot” to stake out.
No, but saying in effect that “it is right because Jefferson and Locke believed it” is a fallacy. Specifically it is an appeal to authority. Jefferson and Locke were no more empirically correct about the existence of natural rights than Aquinas or Luther were empirically correct about the existence of God.
Just for the record, Dewey, if you truly believe what you say in this post, then you are committed to thinking the same thing of your own justification for your preferred legal doctrine. Now, I don’t buy the natural rights views myself - I’ve always thought that Bentham got it about right: “Rights are nonsense. Natural rights are nonsense on stilts.”
This does not, however, do anything to undermine the legitimacy of an appeal to theoretical ethical considerations when debating how the legal system ought to operate. If appeals to natural rights are out of order, then so are appeals to the value of majority rule, since the latter is precisely as much a normative claim as the former.
Ultimately, the question of how courts ought ideally to conduct themselves boils down to the question of how best to structure society. This is a question the answer to which will be derived not from legal arcana, but from basic moral theory. This will, of course, make the answer subject to great dispute, since moral theory is an area where there are wide disagreements. However, it is clearly ridiculous to deride a view on the answer to this question on the grounds that it is derived from normative ethics. All answers to this question are grounded in normative ethics. There’s no other possible ground for the answer to a normative question.
Here’s a project for you: describe why our governmental and legal structure should promote majority rule, without appealing to any normative considerations. Hint: you can’t. All answers to ‘should’ questions are normative answers. There are no exceptions. As Hume famously said, one cannot derive an ‘ought’ from an ‘is’.
Oh, I agree completely. My position is founded in a belief that a government’s legitimacy is derived from the consent of the governed. If you don’t buy that as a first principle, you won’t buy into my position.
I think that’s a reasonable first principle, given where the alternatives have lead througout history. Sure, we can have a navel-gazing conversation where we talk about why we say a (mostly) happy and prosperous society is “good” while a (mostly) unhappy and unprosperous society is “bad,” but that sort of thing never really gets us anywhere.
I also think you’d be hard-pressed to argue that self-governance isn’t the central thesis of the American experiment. In a very real way, that is why this country is here.
What I object to is the pseudo-objective claim that rights “exist” and are “discovered,” as though it’s just a matter of going out with a magical divining rod, finding the right spot to dig, and hitting a big gusher of rights. That is silly and absurd. It’s poetry, not argument.
I object to people saying “I have a natural right to X.” That objection disappeares if they’d be honest enough to say “I think we ought to have the right to X” instead of relying on fallacious notions of preexistence.
I don’t think you’ll find anyone here objecting to that principle. But your argument isn’t as simple as all that to make. I agree with this principle. However, I disagree with your understanding of what it entails, and I disagree that it’s the only principle of interest in the formulation of a governmental/legal structures.
Moreover, it’s not a first principle at all. It’s a highly derivative principle. Why is a government’s legitimacy derived from the consent of the governed? This is not some fundamental self-evident truth. It’s a conclusion founded on ethical views. And when you describe why you think it’s the appropriate conclusion to reach, chances are that you will either talk about fundamental rights, or about some variation of the greatest good for the greatest number, i.e., either a deontological rights view, or some version of consequentialism. Naturally, the reasons you think your uncontroversial principle is true will heavily influence how you think it should be understood. It’s not entirely clear to me which route you’d adopt. Your fetish, if I may call it that, for rules has long led me to think that you were a deontologist, but recently I’ve begun thinking you might actually be a rule utilitarian.
In any event, I repeat myself. Your view here is no more free from the taint of “pseudo-objective moral claims” than anyone else posting in this thread. Some others are just more up-front about it, is all.