So the fact that a right to abortion, or the right to privacy or any other right isn’t in the constitution doesn’t mean that the right doesn’t exist?
I don’t care what the Texas legislature said about various rights and duties in commercial dealings, as you instanced in a post long ago.
Roe v. Wade said that during the first trimester a prohibition of abortion serves no overriding purpose in promoting the general welfare or domestic tranquility and so such a prohibition unconstitutionally takes away a right. They might have missed the boat on the “domestic tranquility” part. The decision didn’t disturb my tranquility but it sure did take away that of a lot of people.
I still say, if judicial activism enlarges the “blessing of liberty” without detriment to the other purposes of the Constitution as stated in the Preamble, then have at it.
And if I misstated the strict constructionist position it’s because the position hasn’t been clearly stated. You argue that decisions like Roe are activist because there is no specicially stated Constitutional right to privacy or right to be let alone if you aren’t harming society. Yet you say anything not prohibited is permitted.
If you argue that abortion was prohibited I will merely restate that the Supreme Court said that during the first trimester that prohibition was unconstitutional. If that be what you call “judicial activism,” tough.
You are fundamentally misunderstanding the logic. How can a right exist and yet not exist? But that’s not really the analysis that was being suggested, as I understand it.
Here is the thought process:
Is [activity X by an individual] forbidden by the federal Constitution? No? Okay, then:
X is presumptively lawful. “Presumptively,” because it is not prohibited by the Constitution ("that which is not prohibited is permitted). But . . . the presumption is rebuttable. It will be rebutted when and if a State passes a law against X. Then, we will ask ourselves . . .
Is the state clearly prohibited in the Constitution from outlawing X? No? Then the presumptive legality of X has been rebutted by the action of the State. And the rebuttal is constitutional because “that which is not prohibited [here, legislation against X] is permitted.”
That is, in this argument, the Constitution does not purport to be a comprehensive catalog of that which it is permissible for individuals or States to do. It is a very brief document, and is agnostic on many topics that could well be the subject of passionate and principled political debate; it is just that this debate is not constitutional in nature and judges do wrong (say the anti-judicial-activists) when they drag the Constitution into a fight as to which it doesn’t have a dog in (pardon the awful construction). There are countries whose constitutions or other law purports to be a much fuller catalog of everything that’s good and bad. The U.S. simply isn’t one of them.
Maybe so. But that’s my point. The Constitution does not make an exhaustive list of activity permitted by individuals. However, the Constitution is intended, among other things, to bring “the blessings of liberty to ourselves and our posterity.” Whenever an individual right is restricted by law then the Constitution does “have a dog in the fight.” That law needs to be held up to the light and examined for a determination as to whether it is necessary for the purposes of promoting the general welfare, providing for the common defense or ensuring domestic tranquillity. If not then I think the law is unconstitutional.
The Constitution has as its main purpose, in my opinion, the establishment of a government that stays out of peoples’ business so long as their activities don’t impair the general welfare. It that takes what some characterize as judicial activism, then so be it.
I do not see any great legal turmoil and uncertainty resulting from such decisions as Roe v. Wade. And as I remarked, I don’t hear the anti-judicial activists complaining loudly about the many Supreme Court decisions that drag the Interstate Commerce clause into questionable areas.
In my view “judicial activism” is the hypothetical “bogey man in the closet.” People, according to our Declaration of Independence and other sources, establish a government for their benefit. If judges modifying interpretations, finding new applications of old interpretations or other such actions benefits the people then why not as long as it doesn’t cause uncertainty as to what you can and cannot do or other legal turmoil?
That fact that legal purists wring their hands and get lose a lot of sleep doesn’t bother me too much.
All criminal laws and civil regulations restrict individual rights. Your analysis (on which all criminal laws are would thus be constitutionally suspect) is highly idiosyncratic, as is any suggestion that the aspirational “blessings of liberty” language has a substantive use in construing specific constitutional rights. Or, “rights,” because I suspect DCU and others would view your invocation of “individual rights” that are being “restricted” as question-begging (there’s no right without a meaningful and recognized enforcement mechanism, etc.). So long as you understand that your analysis is an unusual one, even vis a vis conventional liberal jurisdprudence, you’re of course free to advocate for it.
I’m not sure the anti-judicial-activism position was ever founded principally on concerns about turmoil. If the concern is that unelected legislators are imposing their will on the people in a “tyranny of the judiciary,” this doesn’t mean that things are uncertain; it just means that there’s been “certainty” established as to policies that the people, themselves, were not certain about and hadn’t agreed on through the democratic process. “Tyranny” often equates with great certainty and tranquility, precisely because it squelches democratic debate.
I’d speak out against the Interstate Commerce clause cases if I thought it would do any good. Lopez was correctly decided and I’d like to see many more such cases, but it doesn’t seem to be on the cards that the Court would fundamentally re-visit the anti-federalism decisions of the past 70 years.
Ah, but the question is whether it indeed “benefits the people.” That’s where judicial activists say, we don’t agree, and you can’t assume this as proven when democratic debate has been short-circuited by judicial fiat.
It’s fine that you’re not too bothered by judicial activism. I strongly suspect that this Zen-like acceptance, this ability to rise above the “hand-wringing” of purists, might not be so easy to sustain if the uniform result of judicial activism had been the enactment/enshrinement of right-wing/conservative policy preferences rather than of exclusively policies beloved of liberals, but maybe you’ll say it wouldn’t make a difference to you.
I’d like to hear some examples of activist decisions imposing the “tyranny of the judiciary” that would be certainly overturned if put to a plebiscite. For example, despite all the noise about Roe has any state legislature yet been forced by the populace to write a law banning first trimester abortion that would pass the constitutional test that was used in Roe?
And my view of judicial activism might be idiosyncratic but enough judges seem to agree with the general idea that it causes a lot of dyspesia in some legal circles.
I don’t unnderstand the second part of your question. State legislatures have given up trying to pass abortion regulations because the “test” of Roe is rigged so as to guarantee that no law banning abortion could pass it, given that Roe is predicated on the existence of a fundamental constitutional right to privacy and hence abortion. “Accepting that there is never a compelling state interest in regulating abortion in the first trimester, and that the state would be compelled to show such interest, why haven’t you used the democratic process to pass a law that complies with Roe?” Not an especialy helpful proposition.
The decisions that would be overturned by plebiscite or Legislature would include, in some states, Roe, Lawrence, and the death penalty cases. Bakke and Michigan, too, albeit the states rights issues are different there.
I’m sure there are some others. How do I know these decisions would be overturned, at least in some states? Because in each case the democratic process had already led to state laws on the pertinent issues that were diametrically opposed to the policy ultimately imposed by the Court.
There is that “constitutional right” thing again. I would agree with “constitutionally protected right” which doesn’t imply that only those rights enumerated are those we have.
Many of the anti-activists state, explicity or by implication, that a right doesn’t exist unless it is specifically called out, viz:
Yet at the same time they will agree that every thing is allowed that isn’t specifically prohibited.
But isn’t one function of the courts to correct abuses of the democratic process which perpetuated such things as slavery, subjegation of women, legal segregation of public facilities and on and on?
And as to this:
I agree with
It’s that old devil interpretation again. I take the sentence to mean that there is a remedy for every right. All you have to do is find it and if you can’t find one, make one.
Well, this objection is a red herring resulting from an overly literal reading of my phrase. The idea, as stated above, is that the government may only act when it has a majority onside, but is restricted from infringing upon individual liberties even if a majority wishes to. Your little hypothetical here is simply irrelevant.
There’s at least two problems with this argument. First, it’s not at all clear that it even addresses my position. My position, you will recall, requires a majority for the government to act. The government can’t do anything with the support of only a minority. (Well, it can if it’s a multi-party system with first past the post elections, but the same is possible on your view, and I think we can probably leave issues arising from Arrow’s Theorem out of this thread.) You seem to be confusing restrictions on what the government may do with action on the part of the government. There is, however, an important distinction to be made here. The fact that I am not allowed to strike you is a restriction on what I may do, but it does not impose a course of action on me (outside of rigged hypothetical situations, anyways). And just as my obligation not to assault you does not deprive me of self-governance, the obligation of the majority to respect the liberty rights of the minority does not deprive the majority of self-governance. They’re not being forced to do anything. Insofar as they’re being “forced” at all, they’re being forced not to force others to do things. That is, they’re being forced not to deprive others of their right to self-governance. But this is no different from the old quip, “Your right to swing your arm ends at my face.” Unlimited individual autonomy is unworkable, since one person can exercise her autonomy to restrict anothers. Hence, maximal individual autonomy must restrict each individuals’ automony at the point where it infringes on the autonomy of another. “Forcing” majorities to respect the individual liberties of minorities is just this same restriction expanded to the level of collective action. It is not minority rule, since there is no course of action a minority can impose on the majority. It is merely a restriction on majority rule.
Second, your argument bizarrely implies that supermajoritarian procedures actually constitute minority rule, since less that a majority may block a course of action. So, the amendment procedure for the Constitution is minority rule? That would make the entire make the entire US government minority rule as well, since its authority is subsidiary to that of the Constitution, right?
Well, only if you ignore the extremely high burden voting with one’s feet imposes on people.
This is problematic on several grounds if you intend it to be an argument in support of your view.
First, it’s ridiculous on its face. The only reason that the majority explicitly deprived gays of their liberty is because the defacto deprivation was being successfully challenged? So if the gays had just not fought the defacto deprivation of liberty, it would have magically disappeared? Right. No. Wrong. Utter bullshit. I mean, you’re right that no one would ever have bothered passing those amendments if gays hadn’t been clamouring to be allowed to be married. But that’s just because there would have been no need for them, not because in that situation the majority wouldn’t have still been depriving gays of their liberty. Do you seriously think that those amendments wouldn’t have passed if MA had approved same-sex marriage via legislation instead of through the courts? Ridiculous.
Second, it’s not remotely clear to me that the MA court did overreach its bounds. Their equal protection clause is really quite robust. The only grounds I’ve seen you state for thinking that they did overreach is this idea that the authors of that amendment didn’t intend to be mandating same-sex marriage. However, I’ve already rebutted that argument in this thread (here), and moreover it’s unclear to me why we should take your word over that of the Justices of the MA Supreme Court as to what that clause means.
Third, you’re begging the question. If we assume that your view is correct, then the MA court did overreach, and if we then grant for the sake of argument that this overreaching was the relevant cause of the discriminatory amendments (though as I said I think this is a ridiculous assumption), this overreaching led to deleterious effects, and hence should count against this sort of judicial overreaching. But you assumed in your premise that the MA court improperly overreached. If you can’t construct a technically valid argument which demonstrates that the MA court acted improperly when you’ve assumed that fact in your premises, then your logical skill would have to be very poor indeed. However, a circular argument doesn’t establish a damn thing. Here, let’s assume my view is right instead - I think that the judiciary needs to act as a safeguard to prevent majorities from robbing minorities of libert. Hence, the MA court acted entirely properly, and we can see that such action is necessary because following that entirely appropriate action, several other states proved that if the courts don’t safeguard minority liberties, majorities will take them away. Wasn’t that easy? I can make up circular arguments too.
Fourth, even if we ignore all these problems, you still haven’t countered the argument for which this was an illustration, namely, that majorites do infringe on the liberties of minorities. At best you’ve shown that one case doesn’t support my argument. But since there are a myriad of other cases where majorities have behaved in oppressive fashion, the argument itself stands untouched.
It means the right may be established by other means. If a state wants to enshrine abortion rights by statute or by amending their own constitution, then that state will have a right to abortion. If enough folks want to enshrine that right in the federal constitution, they may do so via the ordinary amendment process.
Or a state may simply decide not to make abortion illegal, in which case abortion will be permitted. As I said, that which isn’t prohibited is permitted.
But if a state decides to outlaw abortion, it may do so. In a world of perfect jurisprudence, there is nothing in the constitution that says whether abortion should be permitted or outlawed, and thus the state may criminalize that activity if it sees fit to do so.
I don’t care that you don’t care (and a homestead is hardly a “commercial dealing” – think residential property). The point was, a state may establish rights beyond those provided for in the federal constitution if it wishes to do so, and the Texas homestead provision is an example of such a right. The federal constitution doesn’t protect homestead rights, but the Texas constitution does.
Actually, Roe was premised on the “emanations and penumbras” of a variety of amendments in the Bill of Rights and the Civil War Amendments, and not on anything in the Preamble. I hate to let pesky things like facts get in the way of a good rant, but y’know, fighting ignorance and all.
What a crock. Others on the other side of the fence clearly understand the argument, even if they disagree with it.
And, for the umpteenth time, these two statements are not contradictory. Absent any law prohibiting abortion, abortion is permitted. But there is nothing in the Constitution that forbids a law against abortion, so if a state wishes to pass such a law, it may do so.
No, it isn’t, because virtually everything the government does impacts a liberty interest in some way.
Those supermajority requirements were put into place by legislative majorities. They represent hurdles agreed upon by majoritarian processes.
I never claimed utopia; I merely claimed people have options, and that system means the fewest number of people are unhappy.
Did you even bother to read my post? I never said gays shouldn’t fight for the right to marry. I just said they should be doing their fighting in legislatures rather than in court.
I think the same can be said of abortion. In 1973, abortion proponents were waging a very successful campaign to change abortion laws state-by-state. Roe created the modern anti-abortion movement virtually overnight, not just because it crafted a right to abortion, but because it imposed that right from above. People quite naturally get pissed off when things are shoved down their throat.
I really think that had Roe been correctly decided – namely, that the constitution is silent on the question of abortion – we would not have the virulent atmosphere that surrounds abortion politics in the US. I think we’d end up with the overwhelming number of states allowing abortion, with discussion of the issue remaining civil. And I think the gay marriage movement is walking down the same path as the abortion rights movement three decades ago, and that we’re going to see the same result.
I’ve said before, and I’ll say again, that I am not licensed to practice in Massachusetts, am unfamiliar with their constitutional jurisprudence, and that for all I know the Massachusetts version of the equal protection clause may indeed mandate gay marriage. I do note that if it does so, it is very different from the federal equal protection clause. And I continue to note that, while I’m not familiar with the founders who drafted the Massachusetts constitution, I would be very surprised if they thought their equal protection clause implied a right to gay marriage, and I have yet to see someone making that argument from the historical record.
I agree with you on this, and I did not intend my observation as an argument. It was an aside, and nothing more.
Of course, courts have done the same. I point you to Lochner and its progeny.
Judicial restraint doesn’t lead to utopia, but I think majorities are right more often than they’re wrong, and when they are wrong, it’s a lot easier to clean up the mess legislatively than it is to undo a bad judicial opinion.
Right, I shouldn’t have said that the purpose was included in Roe. However, in the interest of fighting irrelevancy, I’ll point out that you responded with the justification for the decision and I wrote about its purpose. I don’t believe that the Justices handed down the decision that they did in merely for the purpose of exercising “emanations and penumbras.” I still say the purpose was to restore a right that had been infringed without justification. And that, despite snide comments, had the effect of enhancing the blessings of liberty mentioned in the Preamble as a prime reason for writing the Constitution in the first place.
You’re going to have to do a lot better than this, Dewey. Remember, I take the practical upshot of my view to be that judges should, when faced with the decision, choose to interpret individual liberty protections broadly rather than narrowly. I’m not advocating anything particularly radical. Even on broad readings, equal protection, privacy, etc., are not going to impact virtually everything the government does. So, again, why should we think that “consent of the governed” is better characterized by a regime where a majority can impose on a minority’s decisions about private aspects of their life rather than by a regime where the private sphere is protected to a greater degree? This is your challenge, and you have yet to so much as address it.
So anything that is enacted by a legislative majority is fine? :dubious: If the legislative majority appoints someone dictator for life, that’s still majority rule? How we reach a given form of governance is all that matters, and the actual form that governance takes is irrelevant? Ludicrous. I take back everything I said about the possibility you might think that consequentialist grounds underlie your view, since this is clearly a deontological take on things.
And anyways, how can you describe the constitutional convention as a majoritarian process, when a majority of adults at the time weren’t even enfranchised? Clearly the founding of the US was by minority rule of white men.
And I repeat. Do you really think that the response would have been any different if the MA marriage policy had been enacted by legislators? Seriously? I think it’s truly preposterous to think that.
And yet not a single person has ever been forced to have an abortion or marry someone of the same sex by those evil activist judges. Really, do you see no distinction here between being forced to do something, and being forced to not force someone else to do something?
Oh? And yet, up here where thus far same-sex marriage has been granted only by the courts, and not by the legislature, there is no backlash. Odd, it would seem, since we’re all about to be forced into gay marriages.
So you haven’t been reading my posts?
It isn’t a “right to gay marriage” we’re talking about. It’s a right to equality before the law unrestricted by discrimination based on innate characteristics. That the MA legislators didn’t realize that the latter entailed the former doesn’t mean that they weren’t in fact intending to enact the latter, and certainly doesn’t mean that the latter doesn’t actually entail the former.
Under what description should we take original intent to be authoritative? Under an abstract description aimed at preserving the underlying principles of what they were attempting to do? Or under a contextually specific description aimed at preserving the historical prejudices and inaccurate scientific views of the authors? Why the latter rather than the former?
Well, this is true so far as it goes. But it doesn’t recognize that majorities are also sometimes cruel and mean-spirited and perpetuate gross injustices on minorities, and that your preferred system of government has no mechanism to prevent this. Indeed, it holds it to be the preferred outcome if the majority really does desire to oppress the minority. That is what I simply cannot fathom.
The Constitution as we have it was not all written by a minority of white men. The Constitution as it currently stands has been written by a variety of people over 200 years. The most recent Amendment was enacted less than ten years ago, at which point it’s my belief that the bad old Dead White Male Founders were mostly dead, and blacks, women, and any other group you may care to name had the vote. Accordingly, the Constitution that we now have is majoritarian. The parts that were written by DWMs have not (with a few exceptions!) been negated as hopelessly obsolete in ensuing years (some have, which proves the people are capable of eliminating obsolete artifacts). Amendments have been added every decade or two to respond to pressing needs perceived by the majority. Thus, the Constitution right now presumptively embodies all those rights and prohibitions that the prescribed super-majority felt strongly enough to change it, under the very clear amendment process.
People would have been shocked and upset, but not as enraged at the mechanism by which the result was foisted on them. A constructionist living in Texas would likely not have given a rat’s ass, knowing that no similar legislative enactment would be possible in his state. When the proposition is merely that five or fewer unelected Judges in Washington, or even Austin, could impose their modish cocktail-circuit views on the rest of the state/nation, the reaction was/is indeed stronger.
The fact that some states/countries are more/less socially liberal, or accepting of rule by judges, really says nothing about whether rule by judges is appropriate, or authorized by the U.S. Constitution. Each state/country is free to choose its degree of effete deference to unelected authority, its tolerance for monarchical rule by the few, and its scorn for the majority. We saw in 1776 that different regions of North America chose a different approach to British rule-by-the-divinely-appointed-few. That those who didn’t bother to cast off the royal yoke till 1950 may be more tolerant of other unelected masters is interesting historically, but not too helpful in understanding the jurisprudence of the country that did decline to continue truckling to the King and his ministers, right around the same time they provided themselves with the Constitution.
Of course it doesn’t. But Dewey is presenting this “backlash” as a substantive reason to favour Strict Constructionism, so it would seem that he does think that what sort of social response results from a decision is relevant to the question of whether the decision is appropriate.
I think you misunderstand the situation. Canadians’ lack of outrage over the various court decisions granting same sex marriage rights is due to the fact that most Canadians aren’t opposed to granting those rights, and has nothing to do with our docile authority-worshipping nature. :rolleyes: Likewise, I think you’ll find that the outrage in the US over the MA decision is fueled mostly by those intent on keeping gays in their place, and has bugger all to do with how it came about. I mean, really, the only people gay marriage is being “forced” upon are the people of Massachusetts, and yet the great majority of the outrage seems to be in other states. The people of Massachusetts don’t seem nearly as exercised about the affair as people elsewhere. And yet, they’re the ones who are having gay marriage forced down their throats by liberal activist judges. So you’ll just have to excuse me, but I don’t see the mechanism being the cause here. It’s the policy itself. And the outrage it has provoked is a simple demonstration that unrestricted majoritarian rule does in fact have the blind spot I’m talking about.
Conservatives whom I know (and I may know more American conservatives and anti-judicial-activists than you’ve run across) are specifically mad about the mechanism. There is a sense that every major liberal policy “victory” of the past forty years has been through the judiciary, not through the democratic process (this is something of an exaggeration, but it’s beyond peradventure that the “progressive” cause in the U.S. has stolen many a march through the S.C., and the conservative cause . . . hasn’t). There is a very real fear that the federal courts are out of control, and uncontrollable, because impeachment has proven to be an utterly unavailable remedy to substantively-flawed judicial performance, and there are no other realistic checks on judges’ power to legislate from the bench, if so inclined. Another dismaying factor for conservatives has been that even when they think they’re appointing prudent constructionists, in modern times judges have shown a tendency to, as the conservatives acidly put it, “grow in office,” as they hear good things from the echo chamber of what Scalia refers to with proper scorn as the “law professoriat” when they move to the left, but have their substantive judicial skills (and not just their politics) slanderously called into question when they don’t (remember the ABA ranking Bork, clearly one of the smarter judges in recent memory, “not qualified,” as though he were some kind of retard who couldn’t draft a power of attorney or read an opinion?).
Here is the sense on the right: there’s nothing the courts can’t do, and when the activists (of all stripes) get wind of that, they’ll waste little time in pushing further and further. It is quite logical to apprehend that ‘gay marriage’ will follow hard on the heels of Lawrence, based on an equally dubious and undemocratic constitutional premise. O’Connor is a weathervane who’s bought way to deeply into her own reputation as somehow magically defining a middle ground, and she’s willing to just make crap up, thinking it will sound “nuanced” and get good headlines (“This affirmative action system is clearly unconstitutional! This one across the street is clearly constitutional! But only for, like, 25 years, then it’ll probably be unconstitutional!”). Everyone at Ruth Ginsburg’s Georgetown cocktail parties thinks homosexuals are fabulously witty and impeccably groomed fine fellows, and there’s nothing to stop her from enacting her approbation of them as law, Constitution be damned. I doubt you share any of these views (why would one who didn’t live in America?), but I can assure you these are sincerely-held views, directed at the judicial usurpation of power, and not only at the particular policies to which this power is applied.
If the Mass. legislature does something really unconventional by mainstream/conservative standards, as I’ve said, I don’t know that conservatives in Texas or Alabama would have so much to say about that. Certainly, a fair number that I’ve met would say “Damn fruitcakes; but what do you expect from those nutty Kennedy-lovers?” Mass. and Cal. have long had a reputation as “out there,” and their legislatures have indeed passed comparatively-radical measures, without the conservatives elsewhere doing or saying anything in protest (other than perhaps vowing never to set foot in those People’s Republics).
Part of a federal republic is that the respective states get to preserve their respective idiosyncracies, and plenty of conservatives recognize that the price of this is recognizing those of others (unless you can muster a super-majority to make certain legal idiosyncracies unconstitutional nationwide).
There’s another reason conservatives would have to, and ultimately would, be more tolerant of “liberalizing” changes enacted by local majority rule. Take the examples we’ve been discussing, or DCU’s example of one judge deciding how Kansas City had to spend millions of tax dollars, based on his one-man-infinite-votes reading of the law. If similar provisions were passed in your state, or town, there is a limit to how much you can curse the morons who enacted such a doomed policy, or de-legitimize the process of its enactment, before you realize you are cursing your friends and neighbors and deploring democracy, or before you realize that you’re one of the morons. Plenty of New York conservatives have nothing good to say about Hillary Clinton. But I know none of them who attack the legitimacy of her carpetbagging presence as their Senator, the way they most certainly would if she had somehow been installed by a judge or appointed in some dark-of-night end run by the Speaker of the N.Y. Assembly, say. At some point, they have to decide if they can live in a state in which 60% of the people could view Hillary Clinton as not just persona grata, but a great Senator. If they can’t, the roads to other states are well-marked.