IANAL. So I say: Huh? Please rephrase for those of us ignorant of legalese. The rest of your comments have been very enlightening, so I’d like to know what this one emans.
I believe laws have an inherent constitutional state from the moment of creation. However, the courts are the only ones who can determine that state so till the law is challenged it will stand (but IANAL either so wait for DSYoungEsq to chime in with a definitive answer).
As soon as Congress passes a law it comes into effect (or whenever the law says it becomes active). Till a court reviews it the law can and does apply.
As to letting a law stand because they won’t review it seems to happen but I may be missing something. The SCOTUS has passed up hearing cases that I thought they should listen to but they may just be saying that the case is similar enough to past cases not to warrant another look
In some instances a court may issue an injunction temporarily suspending a law till the court can take a closer look at it. In this case the law is in limbo till it is decided either way. This is usually done when a law will seriously shake the current status quo and prevent damage being done by a law that isn’t easily undone.
In other cases a law may be made to see which way the wind is blowing. Occasionally laws have been passed that it is known will almost certainly get overturned (you see this with abortion issues a lot). Once a ruling has been made another law is passed that tries to be as restrictive as possible and just pass constitutional muster based on the previous ruling. As the makeup of the court swings from liberal to conservative and back different groups may take new shots at laws they didn’t think had a chance with the previous court (thus the scare over the status of Roe v. Wade if Bush gets to appoint a more conservative court).
If an injunction hasn’t been issued you can be prosecuted under the law till a court gets around to you. If in the end the SCOTUS says law such-and-such is unconstitutional you are free to go with your record expunged of the offense (it was if the law never existed). That you spent the last 10 years in jail is just tough luck for you.
Some diehard activists may intentionally break a law they feel to be unconstitutional just to get it tested. Those are some dangerous dice to roll since things may not go your way and you will still likely spend time in jail for your transgression (if you are convicted in your first trial you will sit in jail till your case makes the Supreme Court and is hopefully overturned). There is no regaining damages from the state for having imprisoned you in this manner so you had better feel VERY strongly about whatever issue you are fighting.
P.S. Nice responses DSYoungEsq…very enlightening and interesting.
A law is either constitutional or not ab initio. The USSCT makes that determination, but that determination relates back to the wrongful enactment.
As to Toadspittle’s comments, I don’t know where he is confused. If he could be more specific some one, preferably DSYoung Esq, since he is obviously the expert, could elucidate. If he is confused between comparative negligence and contributory negligence, I think DSYoungEsq’s post explains it. In states that use contributory negligence, it is a complete defense to a tort action. If you are at all negligent, no matter how slight, you will not be able to maintain your action no matter how great the defendant’s negligence.
That leads to some inequitable results. Hence, many states have changed that common law doctrine to a comparative negligence, and assign damages accordingly. In the case cited, there must have been a great disparity in the relative negligences. Hard cases make bad law. But even in contributory negligence cases, in a jury trial, the jury will usually adopt comparative negligence even tho it’s not the law.
As to the common law state, I think the above explains that. Cal. applies the common law. This is evident in ownership of property, primarily. All states apply the common law, except so far as it has been abrogated by statutes. Cal.'s statutes are pursuant to the common law. Perhaps DSYoungEsq can elucidate the reason why Cal. cannot abrogate the common law by statute. All I know about common law states is that Cal. is the only one and that ppty acquired during marriage belongs to both parties.
Toadspittle:
Older doctrines of contributory negligence said that if, in an accident, you were 1% at fault (negligent) for causing the accident, and the other party was 99% at fault (negligent) for causing the accident, you were SOL. No bucks at all. Later such rules got amended so that, as long as you were less than 50% responsible (some states let you be exactly 50% responsible), you could still collect from the other guy. Now that’s kinda tough, cause a lot of juries think, well, why should the other guy pay ANYTHING when the complaining party is significantly responsible for what happened? Finally, legislatures began to pass laws called “comparative negligence” laws–which then had to be UPHELD as constitutional by the courts. Thank you, courts!! These laws said:
a) Figure out the damages. Party A needs $200,000 to pay the bills and compensate for being out of work. Party B needs $1000 to fix the truck bumper. Party A is 30% at fault (failed to observe that Walk/Don’t Walk light was burned out); Party B is 70% at fault (driving truck over speed limit after four beers).
B) Then Party A collects 70% of damages (all together now, that’s $140,000) and Party B collects 30% of damages ($300).
Please don’t argue about the allocations of fault in this hypothetical. The jury was there; they heard the testimony and decided how much fault to allocate to whom. I’m just trying to explain how the bucks get split up under a comparative negligence law.
I had a mental block in my previous post. Cal is the only community property state. There was no community ppty under c/l. All the states, except La., IMHO, are c/l states. They’ve all adopted the c/l of England. Statutes have abrogated much of the c/l, but statutes in derogation of the c/l are strictly interpreted. If they can be interpreted not to abrogate the c/l, they will. Many states have used that to allow c/l marriages, even tho statutes provide for marriages. (A few states by statute also allow c/l marriages.) But that’s another topic.
So, I don’t know what DSYoung Esq means, unless he means that Cal, after all is a c/l state but that’s not unusal. Most states are. It’s even more confounding to me since contributory negligence was c/l and comparative negligence is only by statute. So here the Cal ct imposed comparative negligence when there was no statute. That must’ve been some hard case.
Little Nemo asked:
The classic position is that an unconstitutional law is of no force and effect right from the start, although it may be years before the courts have the opportunity to consider it and declare it unconsitutional. See, for example, the judgement of Field J. in NORTON v. SHELBY COUNTY, 118 U.S. 425 (1886):
This approach to the problem, while theoretically clean and tidy, can raise real practical problems, since it is essentially a retroactive finding of unconstitutionality. More recently, the Supreme Court has held that its findings of unconstitutionality will only apply prosepectively. See: LINKLETTER v. WALKER, 381 U.S. 618 (1965) and STOVALL v. DENNO, 388 U.S. 293 (1967).
friedo asked:
What about quorum? Title 28, §1 provides:
That’s similar to the hypothetical rule about the number of votes needed to allow an appeal. §1 says that two-thirds of the Court must be present to make a decision. If left to itself the Court might have said 5 judges (a bare majority) were quorum, or that all the Court had to be present, or some other option. The Congress is setting part of the Court’s procedure by statute.
I believe that the Court’s approach to such matters would be to consider whether such statutory provisions impinge on the Court’s independence. If one did (i.e. - was a disguised attempt to prevent the Court from making certain types of decisions), then it would likely be struck down. But if it’s a neutral, procedural rule, it’s probably within Congress’s power under Article III, §2, which provides, in part:
I’ve not researched the point, but the highlighted portion appears to give the Congress at least some power to regulate the procedure of the Court in hearing appeals.
OOPS! Erratum: the Supreme Court has held that it has the discretionto decide that a finding of unconstituionality will only provide prospectively - I made it sound like all findings are prosepective.
No kidding! If I am convicted and imprisoned under a law later found unconstitutional, can I sue the state for wrongful imprisonment?
Now we’re getting into some really fun and quite complex areas of constitutional law! Hang on to your hats, here we go! (oh, ok, well, I think it’s exciting…)
Congressional Control of Supreme Court Power
The Supreme Court holds two distinct types of jurisdiction (judicial power). In some cases, it has original jurisdiction, that is, the party requesting court action goes directly to the Supreme Court and files the appropriate request for action (complaint, petition, etc.). Such jurisdiction is mandated by the Constitution, and the Congress may not limit that jurisdiction (see dictum to this effect in California v. Arizona, 440 U.S. 59 at 65 (1979)). However, just because the Court has original jurisdiction doesn’t mean it has exclusive jurisdiction. Indeed, by statute, Congress has limited the Court’s exclusive original jurisdiction to cases between two or more states (28 U.S.C. §1251(a)). In all other cases where the Court has original jurisdiction, that jurisdiction is shared with other courts, such as the federal District Courts. As a result, the Court will usually refuse to grant a request of original jurisdiction when the matter can be initiated in another forum (see, e.g., Massachusetts v. Missouri, 308 U.S. 1 (1939)).
Why is this important to our question about power? Well, if the Congress can constitutionally put limits on how the Court can exercise powers granted by the Constitution, even in the absence of language giving Congress that power, then there is a pretty good argument that the Court is always subject to the limitations imposed upon it by Congress in the absence of specific language preventing such power. After all, there is nothing in the Constitution that says Congress gets to determine the size of the Supreme Court, yet the number of justices is set by Congress (28 U.S.C. §1). And if Congress can set the parameters of the Court, how then can Congress be limited in exercising power over the Court?
Obviously, some limit must exist to avoid abuse. An example of the limitation can be found in the case U.S. v. Klein, 80 U.S. (13 Wall.) 128 (1871). Here, a purported Southern sympathizer attempted to reclaim lands captured during the Civil War. An act of Congress allowed such reclamation if the former owner could establish that he had not aided in the rebellion. A prior decision of the Supreme Court had established that a presidential pardon was conclusive proof of lack of aid to the rebellion. Mr. Klein, with his pardon, won his case at the Court of Claims, and the U.S. appealed. While the case was on appeal, Congress passed a new law, declaring that a presidential pardon was conclusive proof of aid to the rebellion (absent a disclaimer asserting the opposite), and stripping the Supreme Court of the jurisdiction to hear appeals of successful claims based on pardons. In essence, the Congress attempted to force Mr. Klein’s case to be reheard before the Court of Claims with the effect of his prior pardon changed from helping him to hurting him.
The Court found this law to be an unconstitutional violation of the concept of separation of powers. Because the new law did not simply attempt to overturn the effect on future cases of the prior Court decision, but also attempted to impose on the Court a calculus for deciding the case of Mr. Klein and others like him, it exceeded Congress’ power. Congress’ power to limit jurisdiction, then, was limited to neutral limitations, not limitations designed to effect a specific result, or avoid application of due process.
Therefor, we can evaluate an attempt at Congressional power over the Court by calculating whether the effect of the assertion of power would be to abrogate the independent nature of the judiciary. Congress can establish the number of justices because someone has to create a framework and the legislative branch is a good choice (indeed, the Judiciary Act of 1789 was the first bill introduced in the Senate ever). Further, in general, setting the number of justices is a neutral provision, without any affect on the outcome of cases. Of course, it can be imagined that Congress could manipulate this power, and indeed it has. Congress abolished two positions following the Civil War to prevent President Johnson from filling them; one of the seats was restored in 1869 when Grant became President. And the infamous “court-packing” scheme of President Roosevelt was viewed by many as a potentially unconstitutional attempt to affect the decisions of the Court. But, in general, having seven, nine, or even 15 justices would have no effect on the results in individual cases. Other attempts to exercise power would be reviewed in similar vein.
Common Law - Court created law
A brief added commentary on common law principles and why it is important to remember them when talking about judicial activism. Please note that this has nothing to do with community property states (of which California is but one of several), but does have to do with the concept of common law marriage.
England’s law is based on the concept that it is a compilation of concepts and rules developed by the courts of the land, rather than by the legislature. Indeed, well into the 18th Century, England continued to develop its legal principles much more often through court action than through legislative action. The law regarding simple crimes, torts, marriage, property inheritance and disposition, etc. was a common approach developed by the courts over the centuries after the Norman conquest. Certain legal scholars (e.g. Blackstone) went to great lengths to review the cases which had been decided over the years so as to be able to restate these common law rules for future reference. By the time of the American Revolution, there were many very settled principles of law which the basic courts applied without reference to any legislative act; in contrast primarily were causes of action and/or criminal procedings brought “in equity”, that is, brought before the equity courts of the crown.
All of the states in the U.S. ascribe to the theory of common law except Louisiana, a former French colony which applies French “civil” (codified) law. The basic principle that supports common law is the idea that the determinations of past cases should rule the determination of future cases. This concept of stare decisis is the reason we publish decisions from appellate courts; it provides a relatively stable approach to the law without results being subject to the whim of individual judges.
However, even the common law can develop. Slowly but surely concepts evolve, as times change and needs change, or as legal minds examine the value of different rules. It was with this in mind that the California Supreme Court addressed the needs of the courts in that state regarding tort actions and plaintiff negligence. In essence, it developed a new common law rule in favor of comparative negligence to replace the old common law rule of contributory negligence. Other states had accomplished this by statute; California for various reasons had failed (the plaintiff’s bar in California is extremely politically powerful). By determining that the only statute addressing the issue had not overturned common law, but merely restated that the issue was governed by common law principles, that court freed itself to develop a new rule. The rule has since been codified and modified by statute.
Which brings us to common law marriage. In the common law, there was a provision that people who held themselves out as married, and acted as married, were to be treated as married. Thus, even if I don’t have a valid marriage, but I live with someone for twenty years and we call ourselves Mr. and Mrs. Jones, we can be treated as married. Some states in the country still allow this concept; others (Ohio is one) have abolished the concept by enacting a statute which eliminates it.
Thanks very much DSYoungEsq for taking the time to inform us Dopers. I’m sure we all appreciate your sharing of your immense expertise. It was ingenious, but at the same time deceitful, of the Cal. SC to change the law applying common law. That was an egregious example of the court legislating. I never heard of any recently developed common law in this country until you pointed that out. Do you know of any other examples?
I hate to dispute anything you say, since I’ll probably be proved wrong. Nonetheless, I’ve always understood that a common law marriage * is * a valid marriage, not merely deemed or treated as a valid marriage. Once the common law marriage has been established, all the appurtenances that go with a marriage attach, such as the need for a formal divorce.
Thank you for your excellent analysis of the specific legal points involved. I have to admit, however, that as a non-lawyer I really have a hard time wrapping my head around the concept of considering the elite, competitive levels of a professional sport to be a “public accomodation”, that must adhere to ADA intent regs regardless of it’s stated rules of play. I’m all in favor of (physical) handicapped access where possible but at what point does “this special accomodation must be made for me” concept reach it’s limits? I feel sympathy for Casey Martin but carting around the greens … it’s just goofy.
“but at what point does “this special accomodation must be made for me” concept reach it’s limits?”
IANAL but I have heard that you don’t have to hire a blind bus driver.
The Supreme Court ruled that the stated PGA rule, requiring walking the couse, had nothing to do with the actual competitive aspect of the game of golf. I don’t think that this is really reaching. The pros’ have a caddie to carry their clubs for God sakes. I am a fat, lazy, Big Mac eating bastard and I can walk 18 holes carrying my own clubs with little affect on my game.
The arguments associated with this case serve as evidence that preofessional golfers, taken as a whole, are spoiled brats who need to keep every little perceived advantage regardless of common sense. Look at the reactions of the golfers themselves when the PGA came under fire for playing tournaments at clubs that did not allow blacks as members a few years ago.
For the love of God, they don’t even carry their own clubs!
In addition to the discussion of the power of the Supreme Court under the Constitution and precedent, there is another important way that any Supreme Court decision can be reversed.
Quite simply, if a Supreme Court decision is sufficiently unpopular, Congress can change the law that the Supreme Court has interpreted, or, if necessary, the Congress and the States can amend the Constitution.
For instance, in the ADA/Casey Martin case, the Supreme Court was interpreting a federal law. If Congress objected to the decision, it could simply amend the ADA, adding an exception for professional sporting events or some such, and the Supreme Court decision would be effectively overturned. This sort of thing actually happens somewhat regularly, though usually in connection with more obscure types of law like tax law.
If a law were overturned on Constitutional grounds, the decision could be reversed by amending the Constitution. For instance, many people advocate a Constitutional amendment to reverse the effect of the Supreme Court’s holding that flag burning is protected expressive conduct. Similarly, when the Supreme Court rejected the original federal income tax law, the Sixteenth Amendment was enacted, permitting income taxes.
I’m not that familiar with the operation of the common law in the U.S., but if a similar case occurred in Canada I don’t think I’d characterise it as deceitful or egregious. Our courts frequently state that the common law is itself judge-made law, as DSYoungEsq points out. If the common law is made by a judge, it can be altered by a judge. Our Supreme Court has set out principles to guide the courts on the occasions when the common law should be changed, and when the courts should leave it to the legislatures. Similarly, Justice Holmes stated that courts do legislate, but they do so “interstitially” - i.e. - to fill in gaps, to keep the common law up to date with modern society, and so on.
One little quibble with DSYoungEsq’s more recent posting (sorry, Douglas - I keep doing that!) is the following
If you’re saying that criminal law and equity were statutory at the end of the 18th century in England, I must respectfully disagree. The principles of equity and the common law of criminal offences were both primarily judge-made law at the end of the 18th century. Criminal law had been developed by the various county and superior courts, and the principles of equity by the Chancellor sitting in Chancery. Statutory reforms of both areas of the law did not really get going until the 19th century.
Our system of government is balance between the executive, the legislative, and the judicial. When the judicial begins to legislate, I have qualms about that. Contributory negligence was (and is in many jurisdictions) the common law. I don’t think the courts in this country should be amending it because they don’t like the results it would produce in any given case. (As I said, that must have been some hard case.) It’s up to the legislature to change it. DSYoungEsq said that the Cal. legislature did change it shortly after the court did. (Makes the legislative act sort of superfluous since the court already did their job.)
Sorry, with each USA congressman now representing many times more people than any other assembled government body on earth, changing the law is a moot point. Unless you agree completely with one of two parties (a system George Washington warned about in his farwell address.)
The population of the USA has increased how many times since the number of representatives was last increased?
Sorry, states lost all rights with the first Republican president, Abraham Lincoln.(Even Senators are now elected by popular vote instead of appointment by states.) States are constantly blackmailed by Congress to pass laws in exchange for funds.
Want examples?
As for the so called Supreme Court, reconcile Gore vs Bush and the Constitution of United States and I’ll show you a nation doomed to imperialism.
Cite you say? How about the guy who put Charles Manson behind bars?
IIRC, in Li vs. Yellow Cab, the Calif. SC carefully considered whether the words of the statute already called for comparative negligence. They explicitly agreed that the statute did NOT do so, but then changed to Comparative Negligence anyhow. Their “in-your-face” explanation added to the fact that they were replacing an enacted law with their preferred procedure.
Roe v Wade was another “in-your-face” decision, with no real attempt at justification, although I happen to like the result.
AcidKid, I think we’re speaking about different things here. I’m addressing the power of various branches of the federal government and the States under the U.S. Constitution. Your point is related to the relative balance of political power among the branches of government and political organizations.
Under the U.S. Constitution, “The judicial Power of the United States shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . .” (Art. III, sec. 2) Put more simply, federal courts (including the U.S. Supreme Court) have the power and repsonsibility to interpret the U.S. Constitution, federal laws, and treaties.
If anyone objects to an interpretation of the Constitution, laws or treaties by the U.S. courts, they have the power to use the political processes to amend what was being interpreted as follows:
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The Constitution: Article V provides that a Constitutional amendment may be proposed by two-thirds of both Houses of Congress or by a Constitutional Convention called on application of the legislatures of two-thirds of the states. Such a proposed amendment must be ratified by by three-fourths of the states, either by the state legislatures or by conventions called in the states. Accordingly, Congress and the States together, or even the states alone (though I believe the Constitutional Convention method has never been used), have the power to amend the Constitution.
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Federal Law: Article I, section 7 provides that a bill will beome law if it passes both Houses of Congress and is signed by the President, or if vetoed, the veto is overridden by a two-thirds majority of both Houses. Accordingly, Congress has the power to change federal law, either in conjunction with the President or by itself.
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Treaties: Article I, section 2 provides that the President “shall have the Power, . . . to make Treaties, provided two thirds of the Senators present concur.” Accordingly, the President, in conjunction with the Senate has the power to make Treaties.
To get any of these done, an advocate for change must move some combination of Congress, the state legislatures and the President to act. The question of how to get those bodies to act is a political question which I will leave to the political scientists (professional and armchair).
I believe, however, that you overestimate the difficulty of concerted political action where there is a strong national consensus. If a Supreme Court decision came out to wide and uniform objection among voters, the political branches would move swiftly to change the provision being interpreted. It is only where there is political division among the populace that the balance of powers among political institutions enters the picture.
With regard to Bush v. Gore, I cannot see how that is an expression of imperialism. The background to that case was a Presidential election where, following the procedures of the Constitution, the race in a single state that tipped the balance of the Electoral College came very close to being tied. It was only because the voters of the several states managed to split the Electoral College vote, and the voters of Florida voted for Bush and Gore in numbers so close to equal that further recounts might tip the balance, that the U.S. Supreme Court got involved. Bush v. Gore came up because of the collective actions of voters, not because of some imperialistic urge of the Supreme Court.
Whatever you say about the merits of the decision and the law and politics behind it, it did have the effect of heading off a Constitutional crisis (generally, a situation where one branch of the government is at odds with another where their respective rights and responsibilities are not clearly defined by the Constitution and laws). If the Florida courts and legislature had endorsed two different slates of electors, the eventual “election” for President (most likely in the House of Representives) would have been significantly more devisive and bloody.
Generally, U.S. governmental institutions act to head off Constitutional crises. For instance, in U.S. v. Nixon, 418 U.S. 683 (1984), the Supreme Court held that President Nixon must turn over the Watergate tapes to the special prosecutor. Before the decision, Nixon had indicated that he might not comply with the Court’s decision if there were dissenting Justices. The Court issued the decision 8-0 (Justice Rhenquist not participating), and President Nixon complied, averting the very question at the OP of this thread.
Billdo,
Thank you for your post. I must confess to having to thunk upon it somewhat. May we agree that the post concerns:
Although you may well contend the argument is about:
**
And I understand your point of:
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But I must point out the low voter turnout in a nation where it was a minority that actually started a rebellion in '76.
And, as I said, a uniform objection would go unnoticed amongst the largest group of voters per representative ever on the face of the earth and considering that the uniform objection would be a mere fraction of the available voters.
President George W. Bush is not the only president to be elected with questions of the election process in the state of Florida. Was it Taft or Hayes who was also elected with irregularties in Florida? (Global warming can’t come too soon for me.)