From the conservative/anti-activist viewpoint, you’d have to view it as arguing in the alternative: Either Marbury is bogus, in which case we’re not going to be invalidating laws or granting rights to be free of such laws, or we live in a world in which Marbury exists and we have to deal with it, and if that’s so, rather than stick my fingers in my ears and refuse to play, my reasoning is thus and so, and I conclude that the Framers intended no constitutional right to privacy, thus none exists.
Does this create a logical paradox because the latter alternative implies that “Marbury is bogus law, but sometimes we have to follow bogus law because it’s established,” whereas in other cases conservatives (or liberals) would argue that “bogus established case law” (e.g., Roe, or Bowers for the liberals) can and should be disregarded/struck down?
Not a fatal paradox. Common law has always accepted that precedent is not absolute, not uniform, and not free from self-contradiction, and that some “well settled” law is more “well settled” than others. You’d bring the whole judicial system to a standstill if you got hung up on this principle (hey, maybe the conservatives would like that, though).
It’s only devastating if you accept the premise that the Constitutional Convention was trying to create a perfect mirror image of English common law tradition with absolutely zero deviations. I’m not sure that’s a safe assumption. Furthermore, Marbury was decided within the lifetimes of the framers, and yet you don’t find any objections to it from them. You find bitching from Jefferson – an antifederalist – but not from the likes of Madison and Hamilton. Your premise that the founders did not want judicial review is far from certain.
Further, a strict constructionist can agree that Marbury rests on shaky ground, yet believe that its longstanding acceptance and a respect for stare decisis means it should be honored. The same goes for incorporation of the Bill of Rights. Just because past activist decisions have become permanent parts of the legal landscape does not itself justify further activism. Just because you get away with murder once doesn’t mean you should keep on killin’.
Actually, no one claims that the Framers were trying to create a perfect mirror image of English common law tradition with absolutely zero deviations. Hell, the Constitution itself was a massive deviation from that tradition. The point is that the Framers, when departing from English law, said they were departing from English law, by incorporating the change into the US Constitution. One change they did not incorporate was judicial review.
As for the failure of federalists to bitch, that can alternatively be explained by the fact that Marbury was a decidedly pro-federalist decision. They may not have wanted to upset the apple cart.
You will also note that no one sought judicial review of the Alien and Sedition Acts to see if they passed constitutional muster, which they certainly did not. 'Cause no one thought it was the judiciary’s job.
Sure. But the point is, you can view those facts either way. We’ll just never know.
Or, heh, no one wanted to argue that a law passed by a legislative body largely made up of the framers violated the framer’s intent of the constitution.
Justice Scalia has stated numerous times that he is not a strict constructionist but an originalist. He has stated that being an originialist does not mean that you look to original intent. An originalist looks first to the text but also must look to what that text meant to the people at the time. Are you saying that Justice Scalia is wrong when he says that is not a strict constructionist? Is he also wrong when he says he is an originalist?
It’s not my point, thanks. As I tried to make clear earlier, there’s a difference between interpretation and the application of interpretation. If judges choose to believe settled law is wrongly decided then more power to them. I might even agree. But that doesn’t mean they should take it upon themselves to fix the problem. Their job isn’t to make policy but to see that it is followed. Now there are plenty of times when courts are in uncharted territory. If there is no precedent to follow then, and only then, should interpretation become a factor. That’s how I see it.
And if you understand how unreliable the historical record is then why were you talking as if a person could easily look things up like it was a phone book? As it exists there is plenty of muddy water where reasonable people can disagree and unscrupulous people can find pseudojustifications for whatever outcomes they please.
Here you are juxtaposing what to me are 2 noncontradictory terms. From my perspective most, if not all, originalists are activist. They are willing to overturn precedents that, in their opinion, do not conform to the original intent of the Constitution. Take Social Security for instance. Do any of us really believe it isn’t a government-run insurance scheme? Do any of us believe such a power was delegated to the federal government by the Constitution? So an originalist might step in and declare it unconstitutional. In that case the courts would be stepping in to drastically alter our society and for what? Because we aren’t supposed to have Social Security? Let me assure you that we would have it now even without the “Switch in Time That Saved Nine”. If our Constitution wouldn’t accomodate it we would have gotten ourselves a new constitution.
Perhaps the same thing could be said of abortion. If the Supremes hadn’t handed down Roe v Wade we might have been able to hash it out by now and come to a compromise that was acceptable to the overwhelming majority. So why should we let the courts turn back the clock on abortion or Social Security? If conservatives want to change the Constitution we have an amendment process for that.
I doubt it. And with good reason as it appears judicial review was discussed and agreed to during the federal convention. On July 21, 1787 James Wilson resubmitted a proposal to have the Judicial Branch share in the veto power by having some judges join with the president to form a Council of Revision to wield it. This provision had previously been considered and rejected as Wilson relates:
“It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these 2 characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature.”*
( Bolding mine. )
Madison doesn’t record that part of the discussion during the previous consideration and perhaps the objections Wilson was responding to were offered “out of doors”. Nonetheless, if Madison is to be believed then the new judiciary they were creating was assumed to have the power to review the constitutionality of the laws. Further evidence is offered by Hamilton who defends the power in Federalist #78.
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."
( Bolding mine. )
As to why the power isn’t specifically refered to in the text of the Constitution, I suggest that it was because the Constitution had to be ratified and the delegates knew just how unpopular the newfangled idea of judicial review was. To many, particularly I imagine amongst those of the lower class with no love for judges in any case, the concept implied that the judiciary was more powerful than the representatives of the people. It is perhaps telling that Hamilton didn’t mention the power until nearly the end of the Federalist series, long after the ratification conventions had been elected.
You might want to think about reading the records we have from the federal convention. Among other things you would learn that the Brits did have a constitution. It just wasn’t written down all in one place. Still isn’t for that matter. Nonetheless it was well known by those who had lived under it and even began their resistance to the motherland based on the rights the colonists believed it granted them. It was refered to over and over in the federal convention. Some delegates ( Dickenson, Hamilton ) admired it; others ( Gerry, Butler ) thought it shouldn’t be their example.
I’d say there’s a key difference, though. I have no problem with a good-faith discussion of what the authors of a text meant, and recognize that two different strict constructionists can come to two different interpretations based on differing views of the historical record, etc.
Living constitutionalists, on the other hand, don’t really care about the historical record. Their arguments are not premised on any kind of serious-minded argument about what the framers intended; they are premised on their own particular policy preferences and moral worldviews.
Nowhere in your cited article does Scalia say he isn’t a strict constructionist. Indeed, his quoted comments describe the strict constructionist position quite clearly.
Scalia is simply using the term “originalism” casually in the cited article.
There are two principal schools of strict constructionism: one, to which Scalia belongs, says you ascertain the author’s intended meaning from the text without reference to external sources. Most folks call this school “textualism.” The other school, of which Robert Bork is the most famous proponent, holds that the author’s intent is paramount and that you should look to sources outside the document (legisiative history, etc.). Most folks call this school “originalism” or “Framer’s intent.”
Now, if Scalia prefers the term “originalist,” that’s fine – his stated philosophy is simply an alternative means of finding original meaning. When I use the term, I use it to distinguish between framer’s intent fans and textualists – Borkians versus Scaliaphiles. Followers of these types of threads ought not be confused.
And Scalia is most certainly a textualist. Again, read his book. He decries the use of things like legislative history as a an interpretive tool in no uncertain terms. He explicilty favors relying only on the words on the page of the document being interpreted.
Just what, exactly, do you think we’re discussing here?
The matter at hand is how judges ought to go about interpreting legal text. This is not itself a legal question - there are no laws regulating its practice - but rather, for lack of a better word, a meta-legal question. And furthermore, it’s clearly a normative question.
There are two sorts of normative questions - those which reference a specified set of rules, and those which do not. A nice illustration of the former sort is sports. If I’m playing baseball, and I swing at and miss three consecutive pitches, what should I do? The answer to this question is determined by a specified set of rules. In the case of baseball, they happen to be neatly collected and written down, but they need not be. Etiquette would be an example where the rules aren’t written down - which fork do I use to eat my salad? Rules governing this aren’t collected in any authoritative and comprehensive document, but exist nonetheless. And of course, legal questions are also of this sort. How you or I ought to behave with regards to the law is a matter that is spelled out, and in this case the rules once again are set out in an authoritative and comprehensive collection of documents.
The other type of normative question is the sort which don’t reference any specified set of rules. Here we find three main sorts of issues - moral issues, issues of practical rationality, and aesthetic issues, and I would be most inclined to include “meta-legal” questions in with moral issues, as they are clearly not aesthetic concerns, and they go beyond the practical rationality concerns of assuming an end and looking for an efficient means to that end. Like moral issues, meta-legal issues are issues of which ends to pursue, rather than questions of how to pursue ends already chosen. Now, answers to normative questions of these sorts are, indeed, “unfalsifiable” in a sense. They do not admit of being verified by empirical data, as scientific principles are. There are no procedures which if followed can churn out answers guaranteed to be correct, as is the case in mathematics or formal logic. The only way to conclusively demonstrate that a position on a normative issue is false is to show that it is self-contradictory. But so long as it’s internally consistent, it may be true. So it’s true, there is no decisive method to demonstrate the truth of any position here.
As an aside, it’s worth noting that there isn’t nearly the dicotomy here between normative and factual matters that one might think. After all, empirical questions do not admit of answers which are guaranteed to be true with deductive certainty either. There is no decisive response to Cartesian skepticism. If it’s folly to demand absolute certainty with regards to matters empirical, then it should come as no surprise that absolute certainty with regards to matters normative is also unattainable. Nonetheless, it is true that there seems to be a good deal more room for lasting disagreement over normative issues.
However, it is impossible to refuse to play the normative game here, as you appear to be wanting to do. Moral rights are unverifiable, therefore they don’t warrant consideration, you say. Very well, but you’ve just made a normative judgement in saying that that’s every bit as fraught with unverifiability as the proponent of considering moral rights. If you are going to answer the question of how judges should go about interpreting legal text at all, your answer will rest in its entirety on normative arguments. It’s a normative question. Any possible answer is normative. It has to be, or it wouldn’t be an answer to that question. So, my apologies, but you’re stuck playing this game whether you like it or not. This isn’t up for debate. It’s an analytic truth necessitated by the nature of the concepts we’re bandying about. Believe me, the positivists did their damnedest to rid normative philosophy of these messy metaphysical issues that seem to be endlessly debateable. They spent decades trying to reduce everything to either analytic certainty or empirical verifiability. But positivism is dead, and for good reason. It just doesn’t work.
So, if someone brings up natural rights (it won’t be me, c.f above allusion to Bentham) by arguing that Griswold didn’t invent a right, but merely recognized a right that had existed all along, they are admittedly wrong if they are saying that Griswold didn’t invent a legal right, but they are not necessarily wrong if they are arguing that Griswold merely recognized a moral right that existed all along, and if they are making the latter claim, there is no a priori reason to think that their point is irrelevant to the discussion at hand.
I have seen Justice Scalia speak and he has stated that he is not a strict constructionist. He also stated that he does not just look to the text. He said that in interpreting the Constition he will look to things like the Federalist Papers, writings of Jeffeson, etc.
Justice Thomas does not look to intent, but he does look to sources outside the Constitution to determine what the Constitution (or an amendment, statute, etc. means) but not the intent of the drafters.
You are riht that he does not like legislative history.
Then let’s hope all judges are judicial activists! You’ve sure as hell convinced me to support judicial activism. I sure as hell don’t want Arnold Schwarzenegger determining how to interpret laws!
You know, I’m not about to wade into this bit of mental masturbation. Here’s the bottom line: people who say rights preexist and are “discovered” never get around to describing how those rights are found. They just magically are. Just once, I’d like to see the friggin’ treasure map or experiment that led to the “discovery” of a right.
What they really mean is “me and the folks I see at cocktail parties all agree this is a good idea, but the population at large doesn’t, and since I can’t convince them I’m just going to call it a ‘right’ to cut off discussion.”
Ah, so moral philosophy is mental masturbation. Check.
You know, you engage in a lot of this mental masturbation too. Your entire theory of legal interpretation is moral philosophy. Every bit of it. Principle of self-governance leading to primacy of the will of the majority leading to a judicial role limited to trying to accurately discern that will - all of it moral philosophy. Your views on the principle of self-governance have exactly the same sorts of grounds as other people’s views that there exist natural inalienable rights which ought to be respected, or my view that we ought to organize our societies in such a way that human well-being is maximized. You seem to claim that your first principles of morality are self-evident or uncontroversial, but you never have engaged in providing a substantive defense of them. Guess what? Sidgwick thought that the first principles of Utilitarianism were self-evident. Kant thought that the Categorical Imperative wasn’t just self-evident, but a necessary truth, i.e., it was inconceivable that it could be false. Of course, both of those fellows provided reams of argumentation to support their views. You just have your bald assertion that self-governance, and your own peculiar understanding of self-governance at that, is where we should start. Why should we think that this is a better starting place than natural rights? I mean, I’ll repeat myself and state that I think that I pretty much agree with Bentham: “Rights are nonsense. Natural rights are nonsense on stilts.” But why should we think natural rights are nonsense? What grounds? You just repeat yourself that there’s no way to agree on their existence. But that’s not much of an argument when there’s no way to get everyone to agree to your conception of self-governance either. Your view is in exactly the same position. Why should we prefer yours?
Hey, if you want to argue that governmental legitimacy derives from some other source than the consent of the governed, have at it. Divine right, perhaps? At any rate, I’ll just point to the long march of history, and crib Churchill’s line about self-governance being the worst form of government save for all the others.
Because they are infinitely malleable. Because there’s no “there” there.
Because history shows the alternatives as being worse.
First, the burden is on you to provide support for your position, not on me to debunk it.
Second, you have highly ideosyncratic views of what constitutes “the consent of the governed”, which render your entire view suspect.
Third, regardless of any of this, your dismissal of alternative views as “infinitely malleable” (whatever the hell that is supposed to mean) or as postulating nonexistent entities (at least, I presume that’s what you meant by “there’s no ‘there’ there”) is exceedingly weak. The actual views of proponents of natural rights theory are not susceptible to such simple-minded criticisms. Oh, sure, the views of various people on this message board may be, but that doesn’t change the fact that there are other people with similar views that are much more robust. I presume that if I dismissed your views on the grounds that someone had come along advocating a simple-minded parody of Strict Constructionism which was ridiculous, you wouldn’t think I had much of an argument. Well, I don’t think you’ve got much of an argument.
Fourth, “Because history shows the alternatives as being worse.” is a consequentialist argument. Do you really want to make that argument? Do you realize what it commits you to?
Bowers had not induced detriminetal reliance of the sort that would caution against overrulling it. Unlike Roe vs Wade, which has. Tens of millions of women living in certain conservative states would be practically guaranteed to have that right stripped from them the instant that Roe was overturned. This is where Stare Decisis considerations kick in.
Unlike a dictatorship, the Supreme Court doesn’t make laws, it merely steps in and says when the government has gone too far. I don’t see what harm has been caused by *Roe vs Wade[/i and Lawrence vs Texas. What, exactly, is the harm caused? Other than an intangible harm caused to your jurisprundential philosophy? I argue that any intangible harm caused by this is far outweighed by the tangible harm caused by those who wish to throw abortion providers and homosexuals in prison.
Can I ask what may very well be a stupid question?
Leaving aside the high powered discussion and snide comments (which even the snide comments are mostly going over my head to be honest), I’d like to ask a simplified question so I can get a handle on what exactly is being debated here:
Is the problem that ‘activist judges’ are circumventing the system by making rulings interpreting issues to shoe horning them falsely into the constitution instead of going through the system and getting amendments to the constitution as they should? Is that a fair (and simple) interpretation of the debate or am I totally missing things? And if so, could someone from either side give a simplified ‘for idiots who aren’t lawyers’ take on it without cites to various judicial decisions from the past? I would seriously like to understand this and to form an opinion on it if possible, but I’m really not following things unfortunately.
Dewey, Bricker, and others argue that there are no rights which are not explicitly granted by the Constitution. That the government, specifically the Legislature, is free to pass any law and restrict any thing it wants as long as there is no specific protection in the Constitution. For them a judge ruling that a “right” is protected by substative due process is “activist” because they claim that right doesn’t really exist because it wasn’t granted.
I, and a few others, argue from the viewpoint of Natural Rights - the stuff mentioned by the Founders time and again - that rights come about from just being a citizen and a person. We are free to do as we please and govenment only has the power to deal with issues that we have specifically given it power to do.
From my viewpoint, we didn’t give the government the authority to regulate sex lives or to ban abortion. Therefore Roe and Lawrence, for instance, stopped the government from overstepping it’s explicit bounds. It not so much that the cases invented rights; because those rights were always there, but it is telling the government that it doesn’t have the authority it had assumed.
I think they are seriously ignoring the plain meaning of Amendments IX and X. They think those amendments are meaningless. I think the Declaration of Independence, the Federalist Papers and the Preample are indicative of the Founders’ belief in individual liberty and a limited government with specific powers and no more. They seem to think those papers are irrelevant because they hold no legal weight. Somehow they seem to forget those writings when trying to determine “orginal intent”.
Dewey and Gorsnak argue over another matter. Dewey is dismissive of any viewpoint not his own (see his reference likening philosophy to “mental masturbation”). While Gorsnak doesn’t subscribe to Natural Rights Theory, he gets annoyed by Dewey’s dismissal of it without being willing to state any arugment aginst it or in support of his own view, from a philosophic viewpoint. Gorsnak is arguing here, and in the past, as I understand it, that the differnent viewpoints that Dewey and I hold are equally as valid philosophically - or at least as we’ve presented them they are. I’m sure he doesn’t agree with either of us; but I’m not sure what he thinks the source of rights are.
