# Is social reform through the courts ever preferable to reform through the legislature? **URL:** \ **Category:** Great Debates\ **Created:** [January 27, 2011, 11:58am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169 "2011-01-27T11:58:26Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 27, 2011, 7:06pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/21 "2011-01-27T19:06:47Z")
> [@LonesomePolecat](#): > > The Bill of Rights wasn’t written to protect minorities from the majority. The Bill of Rights was written to protect the people from the state. There are many examples of societies ruled by elites that were indifferent or openly hostile to the majority. That’s what the men who wrote the Constitution were thinking about when they created that document. Their object was to limit the power of the state, not saving minorities from the oh, so horrible majority. The FF’s were absolutely aware of and concerned about a tyranny of the majority. > [@](#): > > If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. > > SOURCE: [The Federalist No. 10: The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection (continued)](http://www.constitution.org/fed/federa10.htm) – James Madison ---
**Author:** ![LonesomePolecat](https://avatars.discourse-cdn.com/v4/letter/l/a88e57/32.png) [@LonesomePolecat](https://boards.straightdope.com/u/LonesomePolecat)\ **Post date:** [January 27, 2011, 7:10pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/22 "2011-01-27T19:10:16Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Who gives a fuck why the Bill of Rights was written? Who gives a fuck about minorities? You guys have taken the concept of rights and turned it into a majority versus minorities question, thinking that this somehow automatically gives you the moral high ground whenever you arbitrarily declare something to be a right. ---
**Author:** ![LonesomePolecat](https://avatars.discourse-cdn.com/v4/letter/l/a88e57/32.png) [@LonesomePolecat](https://boards.straightdope.com/u/LonesomePolecat)\ **Post date:** [January 27, 2011, 7:19pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/23 "2011-01-27T19:19:44Z")
> [@Whack-a-Mole](#): > > The FF’s were absolutely aware of and concerned about a tyranny of the majority. They were not, however, exclusively concerned with it, and you will note that they were very much concerned about a minority using the state to tyrannize the majority. ---
**Author:** ![PunkyPoo](https://avatars.discourse-cdn.com/v4/letter/p/6bbea6/32.png) [@PunkyPoo](https://boards.straightdope.com/u/PunkyPoo)\ **Post date:** [January 27, 2011, 7:23pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/24 "2011-01-27T19:23:44Z")
The role of the court is NOT to enact social reforms, and it drives me crazy when they do. Their job is to enforce and interpret the law. Not to create new laws from the bench. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 27, 2011, 7:29pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/25 "2011-01-27T19:29:46Z")
> [@LonesomePolecat](#): > > They were not, however, exclusively concerned with it, and you will note that they were very much concerned about a minority using the state to tyrannize the majority. Exclusively? No, of course not. There was a lot on their plate to consider but this was a major focus of theirs and they talk about it more than once. And you’ll note Madison mention that the violence of faction when it is a minority will be naturally dealt with through a democratic process. So not sure where you think they were overly worried about a minority (as in less than majority…not race). ---
**Author:** ![LonesomePolecat](https://avatars.discourse-cdn.com/v4/letter/l/a88e57/32.png) [@LonesomePolecat](https://boards.straightdope.com/u/LonesomePolecat)\ **Post date:** [January 27, 2011, 7:42pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/26 "2011-01-27T19:42:58Z")
> [@Whack-a-Mole](#): > > Exclusively? No, of course not. There was a lot on their plate to consider but this was a major focus of theirs and they talk about it more than once. > > And you’ll note Madison mention that the violence of faction when it is a minority will be naturally dealt with through a democratic process. So not sure where you think they were overly worried about a minority (as in less than majority…not race). The problem, though, is that people on this thread seem to think that the issue of rights is all about the majority vs. minorities. That is, they can’t seem to think of rights as anything other than a means of protecting minorities from the majority. Ravenman came right out and said it: > [@](#): > > The \*\*whole reason \*\*rights are in the Constitution is to protect the minority against the whims of an uncaring majority … (emphasis added) How come ya didn’t sic Madison on him?😃 ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 27, 2011, 7:46pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/27 "2011-01-27T19:46:29Z")
> [@LonesomePolecat](#): > > The problem, though, is that people on this thread seem to think that the issue of rights is all about the majority vs. minorities. That is, they can’t seem to think of rights as anything other than a means of protecting minorities from the majority. Ravenman came right out and said it: > (emphasis added) > > How come ya didn’t sic Madison on him?😃 Well he’s sort of right. By granting rights in the Bill of Rights the majority could not take those rights away from you (e.g. We, the majority, decide this whole free speech thing is overrated and are taking it away…since we are in the majority tough if you don’t like it). ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [January 27, 2011, 7:51pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/28 "2011-01-27T19:51:57Z")
> [@LonesomePolecat](#): > > That is, they can’t seem to think of rights as anything other than a means of protecting minorities from the majority. Ravenman came right out and said it: > > How come ya didn’t sic Madison on him?😃 Oh, my stars, I picked an adjective that slightly overemphasized the importance of the Bill of Rights. Had I only been slightly more circumspect in my choice of descriptive words, my point would be unassailable! Woe is me! Now my house of cards has fallen! > [@](#): > > It was offered simply as an example of a minority that quite clearly wishes to run roughshod over the majority. I notice you ignored my example of the upper classes. I didn’t follow up on it because I wasn’t quite sure of what a specific example of this oppression would be. And just to be clear, I’m not sure we’re using the terms “majorities and minorities” in a similar sense. I think you may be thinking of those terms in the sense of whites/men/Christians/etc are the majority, and blacks/women/Muslims/etc are the minority. I’m using it in the more general sense, such as “the majority” wants to see flag burning laws enacted, but “the minority” rely on the First Amendment to protect that freedom. As I’m using the term majority, one could just as well use “the powers that be” or “the Man” or probably even “the state” in many instances. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [January 27, 2011, 9:26pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/29 "2011-01-27T21:26:37Z")
I don’t see anyone who complains about the courts’ “making law” complaining that the Affordable Health Care Act – which was passed by both houses of Congress and signed by the President – is being [fought vigorously in the courts](http://www.newsweek.com/2010/12/15/will-the-supreme-court-overturn-health-care-reform.html#), and that some judges have dared to rule that a duly-passed law could be unconsitutional. Or that [Allan Bakke](http://www.oyez.org/cases/1970-1979/1977/1977_76_811), having argued his case (and losing) through the California court system, overstepped some boundary by appealing his case all the way through to the Supreme Court. In other words, your “seeking social change” is merely my fighting for my constitutional rights. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [January 27, 2011, 9:33pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/30 "2011-01-27T21:33:50Z")
The reason that reform through the courts is often preferable to reform through the legislature is that it’s often the case that reform through the courts is possible but reform through the legislature is not. ---
**Author:** ![Revenant\_Threshold](https://avatars.discourse-cdn.com/v4/letter/r/f1d935/32.png) [@Revenant\_Threshold](https://boards.straightdope.com/u/Revenant_Threshold)\ **Post date:** [January 28, 2011, 12:23am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/31 "2011-01-28T00:23:48Z")
> [@LonesomePolecat](#): > > No one today, a half century later, is using bombs to oppose civil rights. More than thirty five years after Roe vs. Wade, we still have bombings and arson attempts at abortion clinics. You think that, maybe, just maybe, we would all have been better off if this controversy had been settled by legislators rather than judges? > > You’re not as good at analyzing logic as you think you are. It seems like a cart before the horse sort of situation. For the controversy to be settled by legislators would pretty much require that the issue no longer be a controversy at that point. So in that sense, yes, like as not conclusive legislative action would result in a better off situation, because conclusive legislative action requires a lack of active and committed opposition. You could likewise say that we would all have been better off if everyone decided one day to support one side. Well, yes, and? Edit: As to the question, I believe it serves a purpose in that it provides an example of the kind of extent to which people are prepared to go to change matters; it means that arguments, both for and against the change, will be debated and talked about in the media and hopefully among the general population; and even if no-one’s mind is changed, and the reform is itself reformed soon after, at the very least there’s the chance for people to learn about the issue. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [January 28, 2011, 1:59am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/32 "2011-01-28T01:59:26Z")
Reform is preferable through the legislature, but our majority gets it wrong often enough that the courts make a nice backup. The courts get it wrong too of course, and I don’t know if the legislative process can remedy things quite so easily. What are the odds on getting a legislative remedy to _Citizens vs. United_, an egregiously bad decision by the Court? Almost nil, since it favors entrenched moneyed interests. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [January 28, 2011, 3:46pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/33 "2011-01-28T15:46:22Z")
> [@LonesomePolecat](#): > > No one today, a half century later, is using bombs to oppose civil rights. [O RLY?](http://www.examiner.com/political-buzz-in-national/mlk-parade-bomb-spokane-called-worst-device-ever-seen-this-country) :dubious: ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 28, 2011, 3:54pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/34 "2011-01-28T15:54:57Z")
> [@LonesomePolecat](#): > > No one today, a half century later, is using bombs to oppose civil rights. Do you really want to hang your hat on that? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 28, 2011, 8:08pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/35 "2011-01-28T20:08:20Z")
> [@Evil\_Captor](#): > > What are the odds on getting a legislative remedy to _Citizens vs. United_, an egregiously bad decision by the Court? Almost nil, since it favors entrenched moneyed interests. As I mentioned earlier some states moved to prohibit what the SCOTUS allowed in _Kelo v. City of New London_. Congress also passed the Lily Ledbetter Fair Pay Act in response to the stupid decision in _Ledbetter v. Goodyear Tire & Rubber_. And, as it happens, Vermont is apparently trying to do something about _Citizens United_. I have no idea if it will amount to anything but at least we can see some politicians are trying. > [@](#): > > **Resolution Calling to Amend the Constitution Banning Corporate Personhood Introduced in Vermont** > > On the anniversary of the Citizens United decision, Vermont politicians are moving to deny corporations the rights that humans enjoy. > > SOURCE: [http://www.alternet.org/news/149620/vermont\_is\_gearing\_up\_to\_strike\_a\_major\_blow\_to\_corporate\_personhood,\_ban\_it\_statewide/](http://www.alternet.org/news/149620/vermont_is_gearing_up_to_strike_a_major_blow_to_corporate_personhood,_ban_it_statewide/) Checks and balances. What our FFs had in mind when setting up our government. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [January 28, 2011, 8:33pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/36 "2011-01-28T20:33:30Z")
> [@Shodan](#): > > Government derives its just authority from the consent of the governed. Therefore, social reform thru legislation or referendum is not merely preferable, it is pretty much mandatory. > > The only exception is when judges overturn legislation that violates the Constitution, which was ratified and therefore to which citizens of the US consent. Which brings up the controversy of judges inserting things into the Constitution that are not there already, and therefore to which the people did not consent. > > Regards, > Shodan I’m sure every decision that we’d say is relevant to this discussion would be viewed by the court that issued it as being based on throwing out a law that violated the Constitution. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [January 28, 2011, 8:49pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/37 "2011-01-28T20:49:38Z")
> [@Whack-a-Mole](#): > > As I mentioned earlier some states moved to prohibit what the SCOTUS allowed in _Kelo v. City of New London_. Congress also passed the Lily Ledbetter Fair Pay Act in response to the stupid decision in _Ledbetter v. Goodyear Tire & Rubber_. > > And, as it happens, Vermont is apparently trying to do something about _Citizens United_. I have no idea if it will amount to anything but at least we can see some politicians are trying. > > Checks and balances. What our FFs had in mind when setting up our government. Yah, [Congress have done such a NICE job of securing equal rights for women!](http://www.equalrightsamendment.org/):dubious: And [Justice Scalia’s recent statement on the topic](http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html) has to give everyone hope! Sorry, dude, the legislative process just does not work at all well nowadays. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 28, 2011, 9:07pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/38 "2011-01-28T21:07:33Z")
> [@Evil\_Captor](#): > > Yah, [Congress have done such a NICE job of securing equal rights for women!](http://www.equalrightsamendment.org/):dubious: And [Justice Scalia’s recent statement on the topic](http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html) has to give everyone hope! Sorry, dude, the legislative process just does not work at all well nowadays. I agree but it is not for lack of ability to do so. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 28, 2011, 10:47pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/39 "2011-01-28T22:47:52Z")
> [@Laudenum](#): > > Once more I am in a debate, but this time the topic is: > > This puzzles me, because as far as I’m concerned it is ALWAYS better to seek reform through the legislature. Reforms forced by an unelected judiciary are undemocratic and tend to be resented far more than changes introduced by the elected representatives of the people. > > Now, on a practical level, I know that sometimes it is _easier_ to get reform through the courts, but reading the motion I could help but think that this is never the better route. > > If I was to map out a ‘morally superior’ route, it would go: > > Referendum \> Elected Legislature \> Unelected Judiciary > > Any thoughts from people? If there’s a piece of social reform (or even other types of reform) I am in favor of I much prefer that it be through the legislature, because that means that there is a good chance a decent majority of the population is supportive of my desires. I would generally prefer that only the reforms I feel are truly examples of important reforms that give rights I feel are necessary or protect rights I feel are necessary be enacted through the court system; and then only if legislative efforts are not forthcoming or have failed. A reform to the budget system isn’t something that the courts should do. Quashing systemic oppression, especially when it actually contravenes the clear letter of parts of the constitution are where the courts are most important. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [January 28, 2011, 10:52pm UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/40 "2011-01-28T22:52:27Z")
> [@Laudenum](#): > > Once more I am in a debate, but this time the topic is: > > This puzzles me, because as far as I’m concerned it is ALWAYS better to seek reform through the legislature. Reforms forced by an unelected judiciary are undemocratic and tend to be resented far more than changes introduced by the elected representatives of the people. > > Now, on a practical level, I know that sometimes it is _easier_ to get reform through the courts, but reading the motion I could help but think that this is never the better route. > > If I was to map out a ‘morally superior’ route, it would go: > > Referendum \> Elected Legislature \> Unelected Judiciary > > Any thoughts from people? It seems unlikely that I’d be able to vote in the South if awarding black people the franchise had been left up to the legislature. White folks in Tennessee in the 50s & 60s were not going to go for it. [Previous page](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169.md?page=1) [Next page](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169.md?page=3)