Is social reform through the courts ever preferable to reform through the legislature?

The FF’s were absolutely aware of and concerned about a tyranny of the majority.

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.

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.

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.

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:

(emphasis added)

How come ya didn’t sic Madison on him?:smiley:

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).

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!

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.

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, and that some judges have dared to rule that a duly-passed law could be unconsitutional.

Or that Allan Bakke, 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.

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.

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.

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.

O RLY? :dubious:

Do you really want to hang your hat on that?

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.

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.

Yah, Congress have done such a NICE job of securing equal rights for women!:dubious: And Justice Scalia’s recent statement on the topic 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.

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.

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.