Perhaps the worst example of judicial tampering was the late Judge Garrity and Boton Schools. Boston was a city where all of the ethnic groups had self-segregated into various sections: the Irish in South Boston, the Italians in the North End, the Jews in Mattapan, the Wasps on Beacon Hill. Judge Garrity decided that the Boston Schools were practicing “de facto” segregation. So he decided that children (of various races) should be bused around to schools to achieve a racial “balance”. In practice, this meant that a white kid from South Boston might be bused to a black school in Roxbury…and vice versa.
Well wise old judge Garrity decreed that kids could not attend schools in ther own neighborhoods…so they had to spend half the day riding buses.
Now, 30 years later, the city is still spending $65 million/year, to haul kids across the city! The city schools are more segregated than ever (the whites moved out).
Judge Garrity wasn’t troubled (he lived in all-white , affluent Wellesley Hills). He is dead now, but his legacy lives on!
Well, yes, in a manner of speaking. I think that the underpinnings of both your and Dewey’s views on jurisprudence are false. That would make them equally valid, I guess. 
That doesn’t, however, mean that I think that the conclusions each of you draw from those underpinnings with regards to jurisprudence are equally valid.
I spelled out my own view briefly on the second page of the “Rights? What’s a Right?” thread that Dewey linked to in the second post of this thread. You may think of my position as being grounded in a form of act utilitarianism, though it becomes more complicated because I don’t believe that there is any acceptable account of utility which captures the full range of goods worth pursuing. Or, to put it another way, human happiness is a complicated thing, and certain aspects of it may not be commensurable with each other. This complicates the utilitarian calculus greatly, but that needn’t concern us here. Suffice it to say that I believe that the answer to the question, “What ought I do?” is determined by the relative amounts of happiness or well-being which would result from my various possible actions.
This is why I reject natural rights-based views. On a rights view, rights must always be respected, regardless of the consequences that might entail. This leads in extraordinary circumstances to absurd results, and although there are various responses that a rights-theorist can make here, I don’t think any of them are ultimately satisfactory.
However, it’s a curious feature of act utilitarianism that trying to figure out which action results in the best results all the time will most always lead to results which aren’t the best. That is, act utilitarianism recommends, in most ordinary circumstances, acting as if act utilitarianism is false. As I recall, Sidgwick has some interesting comments on this in his Methods of Ethics. Now, based on what we know so far about political organization and human nature, the best way (i.e., the way with the best consequences) to go about organizing our society is one in which we act as if something much like a rights-based view is correct. However, it’s important to remember that the root justification for respecting the rights which we should pretend exist is based on the consequences of doing so, and hence in extraordinary circumstances one might be justified in dropping the pretence.
What this means for jurisprudence is complex. While many of the cases that actually make it up to the higher courts are actually extraordinary circumstances under which I think it would ordinarily be best to look directly to the consequences to determine the best course of action, court decisions have consequences that cascade down into a myriad of ordinary circumstances. This is because, for better or worse, we’re stuck with the common law tradition where precedent carries a heavy weight. Add in the fact that stability and order in society are some of the most crucial prerequisites for successfully pursuing happiness, and I end up with the thoroughly unexciting view that judges should go about interpreting the law in a relatively conservative fashion, respecting legislative will when possible. However, and this is the relevant point for our discussion, they should, when faced with choosing between reading rights to individual liberties expansively or narrowly, they should lean towards expansive readings. Hence, I favour broad readings of equal protection, privacy, etc. However, because I don’t think such rights actually exist, I don’t think any of them are truly inalienable, and hence restrictions on them may be acceptable given sufficiently compelling state interest.
Original intent I hold to be largely irrelevant in principle, but in practice it happens that many of the framers of your Constitution happened to be very astute fellows with regards to how best to organize a society, and hence their views are worth noting - not because they were selected through some quasi-democratic process to enact your nation’s founding documents, but because they were smart guys.
Now, Dewey’s views on the underlying issues are somewhat of a mystery to me. He appears to begin from a principle of what he calls self-governance. He sometimes states it as the legitimacy of a government is founded in the consent of the governed. On what basis he thinks this is true I’m not sure. His most recent suggestion, “because history shows the alternatives as being worse,” is a consequentialist argument, and if this accurately depicts what he sees as the justification for his principle, commits him to a view not unlike my own, at least at its foundation. (Though consequentialists can agree completely on the justificatory structure of things, and still come to completely opposite views on how we ought to behave due to disagreeing over what the objective facts of the matter entail about what consequences will fall out from which actions.) However, I suspect that like the vast majority of people, he simply hasn’t thought carefully about what ultimately underlies the word “ought”, and that the principle of self-governance here is largely an unexamined assumption.
That said, it’s not a bad assumption, in my view, and for basically the exact reason he cites - history shows the alternatives as being worse. However, I think that the subsequent step in his view is exceedingly implausible. That step is where Dewey moves directly from self-governance to the absolute right of a majority to do whatever it pleases. This seems to me a complete disconnect from self-governance, for I take self-governance to refer first and foremost to each individual governing herself. That’s the basis, and it’s plausible because I’ll be better able to attain my own happiness if I’m governing my actions than I will be if you’re governing them. But we then must compromise self-governance insofar as we want to be able to act collectively - and we do want to act collectively, as the alternative is a Hobbesian state of nature - but collective action necessarily restricts indivdual freedom. All forms of government are simply mechanisms allowing large groups to act collectively, but they impinge upon individual self-governance to varying degrees. Totalitarian despots impinge the most, something like liberal democracies appear to impinge the least, though who knows what systems we might devise in the future. Anyways, the point here is to impinge on individual self-governance to the least degree necessary to enable us to effectively act collectively, or, in other words, to strike the best compromise between self-governance and effective collective action as is possible. What this means is that self-governance as a principle opposes all aspects of government without unanimous support, which in a large group is going to be basically every aspect. Any time one portion of society requires another portion of society to act in ways they don’t want to, self-governance is restricted. What this suggests to me is that the form of government which respects self-governance to the greatest degree possible is going to be a democracy with constitutional safeguards on individual liberties. Or, in other words, government infringes on self-governance the least when its actions 1) are dictated by the will of the majority, and 2) only infringe on individual liberties in ways that can be justified by demonstrating a compelling state interest. However, Dewey bizarrely concludes that respecting self-governance entails granting unrestricted power to the majority, who he trusts, apparently on blind faith, not to restrict individual liberties excessively. I simply cannot fathom this leap of logic, and I completely fail to understand why he makes it. I confess that I find this aspect of Dewey’s views extremely frustrating, which leads me to be somewhat short with him at times. Sorry 'bout that, Dewey.
The other thing that frustrates me to no end is that Dewey consistently dismisses arguments concerning how judges should behave that are rooted in moral theory, all the while failing to recognize that his own arguments are just as rooted in moral theory. Indeed, they cannot be otherwise, for reasons I gave a couple posts above. He wants to dismiss the moral views of everyone else as being irrelevant, ostensibly because moral arguments are entirely relative, cannot be objectively true or false, etc, all the while holding that his own views are rooted in objective truth. All this means is that he thinks (or is committed to thinking, if he were to examine his views on the matter) that his own views on morality are objective truth, and everyone else’s are entirely subjective. Oddly enough, I find this rankling, even though I realize that it’s unlikely that he believes this explicitly, and doesn’t recognize that it’s implicit in what he says.
Which is ridiculous on its face.
Carried to extreme it means that if the Constitution and the legal codes are silent on the issue of my walking down the street, I don’t have the right to walk down the street.
No, it doesn’t. That which is not prohibited is permitted. Absent a law forbidding you from walking down the street, you may walk down the street.
But this is true of representative government, too. Absent a specific prohibition that has previously been agreed upon, the people may shape their respective societies however they see fit. If there isn’t a prohibition in the Constitution that applies to street-walking laws, state or local governments may constitutionally restrict or even ban your ability to walk down the street.
Such a rule may be unwise or even evil, but it is not unconstitutional.
The only thing “ridiculous on its face” is your farcical analysis of strict constructionist philosophy.
Not on blind faith. Again, the Bill of Rights and all following amendments were part of the majoritarian (actually, supermajoritarian) process. So are any number of statutory protections of individual rights, as are many provisions in the constitutions of the various states.
We can dicker over whether individual liberties are curtailed “excessively” I suppose, but noting that majorities are willing to extend protections to minorities is hardly something requiring blind faith.
'S awright. I’m a bit snippy with you as well.
It’s not so much that I think my views are based on objective truth; rather, it’s just that I don’t see a lot of value in dickering over that particular first principle. I could, I suppose, preface all of my remarks with “the following will only be true if you believe that legitimacy derives from the consent of the governed” (and I believe your particular take on that phrase to be contrary to how most under stand it). But I don’t think that’s really necessary. Further, I think that having that discussion turns the thread into an IMHO matter rather than a GD matter.
I think most folks believe the animating principle behind the founding of the American government to be self-rule – taxation without representation and all that other stuff. I think that notion is buried deep in the American psyche. And I think it an appropriate starting point when discussing the role of the courts in our system of government.
:dubious:
You do realize that this means your posts don’t actually address the arguments that Homebrew and others are making? The validity of everything you say depends on the legitimacy of the justificatory foundation. It’s kind of like saying “Well, let’s just assume that my view is correct. It follows, then, that my view is correct.” Well, yes, it certainly does follow, but that’s hardly illuminating.
Garrity is a piker compared to Kansas City federal judge Russell Clark, who in the name of desegregation took over the Kansas City schools, ordering tax increases to pay for all his desired changes – none of which had their desired effect.
Which just goes to show that Alexander Hamilton was wrong when he wrote in The Federalist No. 78 that the judiciary was the weakest branch of government because it controlled neither the purse nor the sword. Turns out, the courts can simply take over the purse by fiat if they want to.
Argumentum ad populum? Disagree if you like, but it would be nice if you provided a counterargument, after I laid out in some detail my grounds for thinking your take is wrong.
That is flatly not true, and I’ve said so many times.
Amendmenet IX is a guarantee against exclusivity. It means that the people can secure for themselves other rights not in the federal constitution (by, say, adding them to their state constitution or by passing ordinary statutes) and need not fear those additional rights being invalidated based on an argument that the list in the federal constitution is exclusive.
Amendment X simply states what should be self-evident from the structure of the constitution: that the federal government is one of limited, enumerated powers, and that the feds cannot legislate in areas not delegated to them. It preserves the power of localities (principally, the states) to maintain local self-rule. It is a big arrow in the state’s rights quiver. It’s also probably the most ignored amendment, given the way the federal government has steadily expanded its reach into heretofore unheard of areas of American life.
The Declaration, Federalist Papers, and Preamble are not themseleves sources of actual law: you can’t get a law overturned because it violates the Declaration, for example.
However, I’d be very interested in hearing where you get the notion that strict constructionists do not find those documents useful in interpreting those provisions of the constitution that are sources of actual law. Indeed, a Borkian originalist would find looking to those documents indispensable in determining the intent of the framers.
Well, like I said, I think it a distraction from the main thrust of the thread. But, briefly:
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You demand a “compelling state interest” before a government may curtail individual liberties. I don’t know how you’re using that phrase, but my experience with the legal meaning of that phrase (principally, equal protection jurisprudence) makes it a test that is virtually impossible to pass.
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The big question, as always, is “who decides”? Who decides what interests are compelling? Who decides when collective action is “ineffective” to the point that such restrictions are necessary?
I wasn’t using compelling interest in that technical sense. Sorry if that wasn’t clear. And as to who decides, well, I should have thought that obvious. A policy which infringes on liberty is justified if and only if the positive consequences outweigh the costs. Consequentialism isn’t a complicated view, though naturally the particulars of any specific case might get messy.
Well, they haven’t taken over the sword yet. But it’d be fun to imagine the headline:
“Supreme Court declares Iraq invasion illegal, orders troops back home.” 
Considering that the Texas legislature onced passed a resolution honoring the Boston Strangler, I think your faith in the competancy of democratically elected legislatures is misplaced. 
’Brew, I think you do the Strict Constructionist Boys, and Dewey in particular, an injustice here. Dewey has been specific (others have not) that the Ninth Amendment is not a cipher, but rather a bar to a theoretical doctrine that the only possible rights are those explicitly guaranteed in the Constitution.
In other words, the rights the Constitution guarantees, in Dewey’s view, are the ones it specifically names. Other rights may well exist, and may be guaranteed by statute or by State Constitutions or statutes. (Several states have a right to privacy – Some years after Bowers v. Hardwick, the Georgia sodomy law under which Hardwick was prosecuted was declared unconstitutional as violative of the right to privacy – not the one inferred from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution, but the one specifically guaranteed in the Georgia State Constitution.
In Dewey’s view, the Ninth exists to give protection in Federal jurisprudence to those clear rights which are guaranteed in other ways than in the text of the U.S. Constitution.
The difference is that in his view, judges may not discover them; they must be enacted by the people or their representatives as elements of (state) constitution or statute, or regulations founded on them.
And here I would agree with you. But you will recall Bork’s comment that it’s somewhat difficult to identify exactly what is an unenumerated right. However, I think that common sense as to what are clearly regarded as rights for some plus the equal protection clause makes clear exactly what the Ninth covers. To take some examples, nobody has ever believed that government can abolish the right to marry; the most that is proposed is that there be no governmental recognition of the idea. No one has ever seriously suggested that the right to travel or to relocate may be abridged other than for crisis-situation circumstances. This calls for a careful examination of original intent on a case-by-case basis and stringent application of equal protection guarantees – if it’s legal for Jenna Bush, then it’s legal for Sadie Gluck and Jesus Gonzalez as well.
This is an excellent point. I think a lot of progress could be made by more courtesy – on both sides, and I’m equally guilty with those I could name opposed to me – in terms of recognizing that one’s jurisprudential philosophy is not a proven fact but a system of interpretation. The only people whose jurisprudential philosophies have the status of law are the five to nine men and women who constitute a majority of SCOTUS on a particular case. Either you or Dewey may be right on a given interpretation of constitutional language – but neither of you has the right to dismiss the other’s views as obnoxious.
However, while Joe Manonthestreet may have opinions about gun control, abortion, gay marriages, school prayer, Ten Commandments statues, the Patriot Act, etc., that fly in the face of the Constitution, he is in general supportive of the idea that we are a free people whose rights are guaranteed by the Constitution – and he doesn’t mean that we’re free to do certain select things that James Madison elected to write down as guaranteed rights, but whatever he thinks is “his right” as an American citizen. That he may not be thrilled about extending someone politically opposed to him what they think are their rights, does not vitiate his own view. And it’s on that principle, of what the common citizen believes about the law, that I hold to a modified Natural Rights position. Because if he, corporately, loses respect for the law, then freedom is in fact doomed – under anybody’s definition.
Not helpful. Who decides what the relative value of the consequences and costs are?
To put this in economic terms, different people ascribe different values to costs and benefits. I think fancy clothes aren’t worth the price attached, but I’ll pay a lot of money for computer gadgets. My wife, on the other hand, reaches almost precisely the opposite conclusion. Her valuation is different.
Again, who decides?
The obvious answer is computer gadgets.
I said it was simple, not easy.
Who decides? Well, when it comes to it, judges judge; that’s why they’re called judges. But you seem not to have read that longish post up there closely. Not surprising, I guess, since it was a tad wordy. But I did note that the practical upshot of my longwinded theorizing simply resulted in the view that judges should, when considering whether to read protections of personal liberties narrowly or expansively, lean to the expansive side. This is hardly an earthshattering difference from your own view. As to how compelling (in the ordinary sense) a state interest needs to be to override a liberty, well, that’s precisely the sorts of calls judges already routinely make with your full approval. All those varying levels of scrutiny, this and that and the next test, all of that is completely made up by judges, as an aid to weighing the competing interests of individual liberty and collective good. Nobody ever said it would be easy. If it were easy, we wouldn’t need to have judges, or to debate how they should go about judging.
At least, that’s the practical upshot of my view in this imperfect world.
I would be interested in you further explaining the self-governance thing, though. Quite seriously, I think that ‘consent of the governed’ must be understood to mean consent of each of the governed, insofar as possible. Now obviously that’s most often going to be an impossible goal, but that doesn’t mean we can’t shoot for the insofar as possible part. And I do believe quite sincerely that this means that self-governance or consent of the governed entails that there are limits to what a majority is entitled to do, and specifically that the majority may not infringe on personal liberties without demonstrating that compelling interest. I do not see any reason to think that your understanding, that of unlimited majoritarian rule, preserves the sentiment lying behind slogans like ‘consent of the governed’ as well as my understanding, and I do not recall you ever making a case that it does.
But why? Why are judges better equipped than others to make that sort of call? Judges are legal experts, not moral philosophers. They’re ordinary people versed in the law, not philosopher-kings.
Ah, but it does. Simply glancing at the status quo indicates as much. The limitations on government found in the Bill of Rights and certain following amendments, in state constitutional provisions, and in state and federal statutes are all products of representative majoritarianism (and in some cases, supermajoritarianism). As a purely practical matter, majorities have on many occassions enshrined into law limits upon their ability to do constrain personal liberties and to adversely impact discrete minorities.
True, but judges do have extensive experience with the consequences of legislation. They understand far better than most laymen what the likely results of a given piece of legislation is likely to be. And they are (at least in theory) disinterested parties who can take an unbiased view of things, whereas legislators are in both theory and practice advocates for the interests of (some of) their constituents. And I believe a look through history shows that judges have perpetrated far less injustice upon the people than legislators have, by orders of magnitude. They’re not a perfect solution, but I very much doubt a perfect solution exists.
This is a very odd argument, and I don’t see how it establishes the point you want to make at all. The fact that majorities do sometimes extend protection of personal liberties to minorities does nothing to establish the fact that they never restrict the personal liberties of minorities, and history, of course, teaches us that majorities often do just this. History is replete with instances of majorities refusing to grant personal liberties to minorities. We need go no further back than two weeks ago, when the generous voters of nearly a dozen states explicitly rendered a portion of the residents of those states second class citizens in virtue of an innate psychological characteristic. The gay folk of those states aren’t being governed with their consent. They’re being governed by the prejudice of their fellow citizens. The fact that some unspecified day in the future they might win their liberty does nothing to mitigate the current injustice.
My question is simple. Why do you think that ‘consent of a simple majority of the governed’ should be preferred to ‘consent of as many of the governed as possible’? Your response here simply doesn’t address this. Insofar as it does anything, it provides an partial response to one criticism of your position. It does nothing whatsoever to provide a positive argument for it, or to present an objection to my position.
There has to be some threshhold. “As many as possible” only provides the illusion of consent – if a rule is “good” but only its sole proponent cannot convince others of that fact, he is justified in implementing that rule because it isn’t “possible” to get anyone else to agree.
There’s no getting around this fact: anything less than majoritarianism is rule by some minority. And frankly, though sometimes majorities act immorally, most folks would prefer to trade off those intances in favor of having a say in how their particular corner of the world is governed.
The genius of the federal system is that it pushes most decisionmaking down to the state and local level. This gives people who are particularly dissatisfied with the decisions of the majority the option of voting with their feet. Representative democracy coupled with federalism makes the least number of people unhappy.
Incidentally, since you mention the recent votes on gay marriage, I note two things:
First, all of those measures were reactions to judicial overreach on the part of the Massachusetts high court. Had gay marriage proponents continued to work on achieving their goals through the ordinary political process rather than throwing a “Hail Mary” pass to the judiciary, those amendments would not have been passed. It should come as no surprise that people get pissed off when their right to decide things for themselves is taken away from them.
Second, those amendments are a big reason why I am a proponent of *representative *democracy. There is something to be said for allowing for a cooling off period before legislation is passed to allow temporary passions to fade. One of the great functions of legislatures is to act as a brake on runaway desires. I think those amendments would not have passed in many if not all of the states that had them if they had to survive the typical committee-floor vote-executive approval process. The referendum process is not a good thing on balance, IMO.
BTW, don’t you ever sleep?