In that world, the answer is: look at the elements of the crime of murder, and then assess whether there is proof of each element. At no time do I say, “Well, the guy did a bad thing that isn’t really covered by any law, so I’ll fudge the text of the existing law a bit to cover it, so that Justice is done!”
You offer up the history of OSHA. Why? The concept workplaces should be safe is a good one, but who has the power to write the specific laws? Congress. And Congress can write a law that empowers OSHA to make rules. But the rules should contain, in their text, their entirety.
Look, here’s a simpler hypothetical: should Trump appoint a judge who shares Trump’s views on immigration policy, AND believes that judges should have wide latitude to go beyond the text in the law to accomplish “good” ends?
Or should Trump appoint a judge who shares Trump’s views on immigration policy but believes he has no choice but to follow the text of whatever the law says?
Which one will deliver better results in terms of your preferred outcomes?
I would be very surprised if Il Douche has pondered long and deep on the Constitutional basis for his immigration policies. He most likely prefers “strict constructionist” because it sounds like something hard-headed and stern. Got a nickel says he doesn’t know Learned Hand from Leonard Nimoy.
He will pick the judge who tells him what he wants to hear. If there are two of those, he will pick the one who will most clearly flip the bird to his political enemies.
No, no, no. Judges can choose what method of interpretation they adopt. Yes, it’s true that judges seek the “true meaning of the law,” but some judges believe the true meaning is found not in the words, but in an extrapolation that also adopts concepts like “our evolving standards.”
ETA: but let me repeat the question I asked above: should Trump appoint a judge who shares Trump’s views on immigration policy, AND believes that judges should have wide latitude to go beyond the text in the law to accomplish “good” ends?
Or should Trump appoint a judge who shares Trump’s views on immigration policy but believes he has no choice but to follow the text of whatever the law says?
Considering how textualists tie themselves in knots to ignore “well regulated militia” in the Second Amendment, I really don’t think it makes a difference.
Simply put, it’s a right wing majority and a left wing minority. Nonsense terms like “textualism” and “strict constructionism” are just a sop to the genteel fascists who prefer their favored forms of oppression be couched in pretty language.
So if I run a iron plant, and want to fire a worker all I have to do is order him to jump into a vat of liquid metal and fire him when he doesn’t comply, unless there is a specific OSHA requirement that says that employees can not be fired for refusing to jump into vats of liquid metal? And if there is one, well than I can demand he drink drano or stand under a drill press (he’s not operating the drill press in an unsafe manner he’s just standing under it). Unless OSHA specifically lists every stupid thing I can think of ordering my employee to do I can fire him for cause. This kind of makes a mockery of employee rights, which I guess is the whole point, and a hint of what we can look forward to from decisions over the next decade. Welcome to the Jungle.
I was just wondering if they’re one of the companies that take insurance policies out on their workers. That’d be a nice racket, eh? Order them into a situation where they can die, if they refuse, fire them. If not, profit!
Trump doesn’t care about the law or the Constitution. He cares about Trump. Period. He wants people that share his dislike of “those people”, people that will give business (meaning HIM) free reign to do whatever they want, people who will be loyal only to him. People who will “justify” anything he wants to do, and lie for him.
Consider, many regulations and laws were the result of the Triangle Shirtwaist Company factory fire. 145 workers burned to death. It is remembered as one of the most infamous incidents in American industrial history, as the deaths were largely preventable–most of the victims died as a result of neglected safety features and locked doors within the factory building. The tragedy brought widespread attention to the dangerous sweatshop conditions of factories, and led to the development of a series of laws and regulations that better protected the safety of workers.
Bricker’s answer would be “there are no laws against it so it’s all good”.
But don’t worry, there is a perfectly good explanation for why a fake version of history is being taught to the next generation of conservatives:
Belief trumps facts. Is that so difficult to understand? Yes, it can run into trouble when it comes into contact with a system of genuine intellectual rigor, such as the law is supposed to be. But hey, when popular sentiment amounts to a sea of cultivated ignorance demanding representation, surely that rigor can be made to give way to a fantasy perspective that results in satisfying legal decisions? Facts be damned! It is going to take a lot of effort and concentrated application of rhetorical trickery to ensure that someone is caught napping by it at every important juncture, but I am confident it can be done. Strap yourselves in for the Ignorance Revolution, folks!
“Belief” can be manipulated. "Beliefs’ can be made to change gradually over time, so the change can be imperceptible. “Beliefs” can be invented out of nothing. Facts are stubborn little things. They don’t change just cuz someone said so.
I believe that judges should interpret the law in the way that does lead to the best outcomes.
That doesn’t mean that they should just look to get those outcomes, but should instead, work within the framework to find a valid way of producing those outcomes. That the way that things can be interpreted to deal with situations that were not specifically covered by congress can be interpreted in more than one valid way is a feature, not a bug.
I say it is a valid interpretation that opertinag of equipment should cover any actions the company asks him to take, not specific to operating a specific piece of equipment defined by the company. It is also a valid interpretation to use the pendatic interpretation that equipment refers only to the truck. If you are given the choice of two valid interpretations, and one says that a company can make you choose between your job and your safety, and the other valid interpretation says that a company may not make you choose between your job and your safety, I would choose the latter, as did the first two judges who looked at the case. Gorsuch then went to look at the case, saw that there there were valid interpretations that other judges had made, and instead, chose to go with the valid interpretation that means that a company may require someone to risk their life to keep their job. It is that decision, even though it can be defended as being a valid interpretation of the law, that makes his judgement suspect.
You keep saying “go beyond the text”, but what you really mean is “go beyond what I (bricker and conservatives who agree with bricker) think that the text should mean”. Others have valid interpretations that the text should mean something else.
Trump will appoint someone who will find a way of interpreting the text to mean what they want it to mean. Will they go beyond the text? Maybe, I wouldn’t put it past this administration to pick judges who don’t even try to justify their reasoning. But I disagree with your assertion that taking a valid interpretation that gives better outcomes and is more in the spirit of the purpose of a law is inferior to taking a valid interpretation that provides worse outcomes and is completely defeating the spirit of the law.
And finally, it comes down to what is good. We disagree. That’s why we have elections. That’s why these judges are appointed by elected officials. Now, our democracy is in a crisis right now, where what is “good” according to the party in power is giving more power and wealth to the wealthy and powerful, further marginalizing those already left behind by our society, empowering corporations to have more control over their employee’s lives, and turning away from the responsibilities that previous generations readily accepted of being a world leader.
If those elected fairly in free elections want to change this nation into a xenophobic backwater with a failed economy run by oligarchs, then that’s what we will get, and judges will be appointed that will further those ends. That is, IMHO what is happening right now, and I am not saying that it is violating the constitution or any law, just that it is violating what we represented ourselves as a nation for decades to the world and to the people of the country. So, yeah, trump will be appointing judges just as you describe, and I can only hope that they actually do attempt to keep themselves within the framework of the laws, giving valid justifications for their decisions, rather than just making the decision that trump wants them to make, regardless of what the law and constituion say.
Can you agree that there is a difference between what “activist” judges have done in interpreting existing law in a way that is favorable to the benefit of society, and simply making up unjustifiable rulings to suit the president’s needs?
The solution, as you have said, is to vote, and I agree with that. But that is not the only, nor the best solution. The better solution is to convince others of the rightness of your cause, and to get them to vote the same way. I will continue to advocate that we should continue to be (or maybe need to go back to being) a superpower in the world that encourages stability, peace, and economic growth for all people, not just those who already are well to do. YMOV.
The problem with this approach is that not everyone agrees on what “the best outcome,” is.
If Judge Smith believes “the best outcome,” is saving the lives of the unborn babies murdered by abortion, then perhaps he’ll make a valid interpretation that the “life” interest protected by the Fifth Amendment and the Fourteenth Amendment extends to the unborn: not just leaving the abortion to the states, in other words, but saying that no state can constitutionally even permit abortions.
Sure, but if you can cobble together a majority of legislators and pass laws permitting abortion, only to find that the law is overturned by Justice Smith and four like-minded jurists, then what?
In my ideal world, though, Smith might be equally convinced of the good outcome of saving the unborn, but recognize that, unfortunate though it may be, that abortion is simply not an area in which the Constitution gives the federal government regulatory authority. So whatever else he did, he’d leave it to the states to permit, or not, and your votes on the issue would actually matter.
Its not just one thing, Counselor, it is an array of efforts to use their power to ensure their power. Not standing athwart Progress, but pushing it back. Not simply interpreting the Constitution to their preference, but “valid neutral justifications” that are not valid, neutral or justified. It is the shambles of Kurt Kobach’s campaign to “correct” voter registrations and access.
Power to the people. If the vast majority of the people vote to turn themselves over to an authoritarian regime, that is their right. Did they? Can you point to convincing evidence that a solid majority of the American people support the agenda being thrust upon us? I doubt even your estimable powers of rationalization is up to that task. To your credit, you don’t even try, you move the subject to areas you are more comfortable with.
If the Republicans had won the popular vote by three million, it would still be a situation that calls for compromise and accommodation. But the Republican notion of compromise is to demand all the power and settle for most.
Your Party has left you, it is not Bill Buckley or Barry Goldwater, it is Dinesh D’Sewer and Louis Goober. A tiger cannot change his stripes, but a man can change his mind. And that moment has arrived.
It is not laws that permit abortion. What kind of law would you think that would be? There are no laws that permit behavior, only laws that forbid it, so your example is meaningless. And how would a court overturn a law that permitted behavior, anyway?
A better example would be that a bunch of states had outlawed abortion, and then a case was taken to the supreme court, where they found the law unconstitutional, and restricted the state government’s authority to invade a person’s privacy and interfere with their medical care.
Then decades later, someone is appointed by an idealogue with an agenda who takes the first opportunity he can, after a state pases and enfocrces an antiabortion law and the case makes it way up to the supreme court, to rule differently.
No, in a perfect world, the judge would have his own belief, but also realize he can’t push his religion on others, due to the First Amendment. He would realize that this is what the anti-abortion laws are: an attempt by Catholics and Evangelicals to use their religion to control the actions of others, and thus find the law unconstitutional based on the principle of religious freedom.
But the reality we are seeing is that the last two judges were appointed specifically because they believe a certain way on the issue, and were willing to vote that way. Sure, they will cite some textualist principle, but it’s really about their religious belief, and allowing it to be forced on others.
I actually found out my religious mom is pro-choice, but just doesn’t call it that, because she’s been taught that Christians should be pro-life. But she does believe she doesn’t have a right to tell a mother whether to abort or not. She thinks pro-life just means “anti-abortion,” when you can actually be pro-choice and oppose abortion.
Of course, you’re right. A hasty and inaccurate phrase on my part. I was trying to convey a case where a given state passes a law to forbid abortion, and a second state does not; I hastily describe that second state as having laws that permit abortion, when the more accurate phrase would be to observe,as you do, that they do not forbid abortion.
Depends on what the law said. A law that purported to permit police to search anyone wearing a “Resist Trump” T-shirt based on the legislature’s belief that such people are up to no good would be overturned as violative of the Fourth Amendment.
Sure. So that’s my example. But in “ruling differently,” that appointee could merely decide that the federal constitution is silent on the issue, or that the federal constitution’s “deprived of life” prohibition protects the unborn.