Mukasey: Worse than Gonzalez?

[Bricker]

Missed this back in January…

[QUOTE=Richard Parker]
Bricker, respectfully, I take issue with your equating *Roe * to the grabbing of unenumerated executive powers. There are critical differences between a court that protects unenumerated fundamental rights and a President who reads unenumerated powers into Article II.

First, we’re talking about different branches of government, about which we have different legitimate expectations. The President doing some extra-textual Constitutional analysis is more dangerous and egregious than the court doing so, because it is the court’s job to say what the Constitution means, not the President’s. For two hundred plus years, the role of the courts has been to say what the law is and what the Constitution means.

Since Marbury, We the People expect–demand, even–that the court interpret the Constitution in bold ways, that they step on the authority of the legislature and the executive when they see fit. We expect the opposite of the executive. We expect him to exercise his authority gingerly and conservatively, and avoid stepping on the authority of others.
[/quote]

Um…

What??

No, WE don’t expect the courts to “interpret the Constitution in bold ways.” To the contrary, we expect the courts to interpret the text of the Constitution as it is written, because to do otherwise is to arrogate to the judicial branch - the unelected, lifetime appointed judicial branch – a power that is absolutely inappropriate. We do NOT expect the courts to be the agents of bold, new initiatives. Those are the province of the legislature and the executive, those branches responsive to electoral replacement in case WE don’t like their bold ideas.

We expect those things because we know history. We know that a tyrannous king is more dangerous than a tyrannous court. The court, after all, has no army.

I disagree with this. We have utterly passed by the days of “John Marshall has made his decision.” When the courts can, without challenge, undertake to assume day-to-day operational authority over school districts for years at a time, they don’t need an army; they have the power they need. In todays world, the army doesn’t follow the President blindly; they follow what they perceive to be the rule of law – which is the federal courts’ to define.

Second, liberties are distinct from powers. Our government is a government of enumerated Constitutional powers. Our people are a people of unenumerated Constitutional liberties.

Slight correction: we live in a dual-sovereign system, where the federal government has enumerated Constitutional powers and, for their exercise, is supremely sovereign; the states have plenary police power.

This isn’t to say that aren’t any unenumerated powers. There clearly are. The power to expel unlawful aliens, for example, is unenumerated. But we are rightly much more critical of allowing those powers than we are in granting unenumerated freedoms, and I think that goes to the heart of our democracy. The Constitution clearly–and textually!–says that there are liberties which are unenumerated. You may disagree with the court’s method of defending those liberties–what you might call “discovering” them–but if you don’t allow judicial protection of these freedoms then you eviscerate the role of the court both as a guarantor of the rule of law and as the ultimate arbiter of what the Constitution means. Without an ability to defend fundamental liberties, our only recourse is a clumsy and majoritarian political process–and if the majority didn’t already want to take away that liberty, we wouldn’t have recourse to the court in the first place.

The problem is that the courts MUST have the power to define and protect these freedoms, but they must not exercise that power beyond the plain meaning of the text.

I liken this to jury nullification: a jury always has the power to nullify; they need not supply the rationale for their verdict. But to do their job correctly, they MUST apply the law as given to the facts they determine exist.

I think you can wholly reject substantive due process and still accept that we ought to be more critical of executive power than we are of the people’s liberty.

I’m not nearly as worried about executive power, because we replace the executive every four years. Our federal judges serve for life, and are almost completely immune from direct public pressure; it’s in the extreme exercise of their power that we see things run counter to our notions of self-governance.

[BrainGlutton]

[QUOTE=Bricker]
The problem is that the courts MUST have the power to define and protect these freedoms, but they must not exercise that power beyond the plain meaning of the text.
[/quote]

Where does the text say that?

[QUOTE=Bricker]
I liken this to jury nullification: a jury always has the power to nullify; they need not supply the rationale for their verdict. But to do their job correctly, they MUST apply the law as given to the facts they determine exist.
[/quote]

:dubious: I beg your jury pardon, what makes you think they’re not doing their job correctly when they nullify?

It’s a feature, not a bug.

[QUOTE=Bricker]
I’m not nearly as worried about executive power, because we replace the executive every four years. Our federal judges serve for life, and are almost completely immune from direct public pressure; it’s in the extreme exercise of their power that we see things run counter to our notions of self-governance.
[/QUOTE]

But the growth in executive power is not necessarily scaled back at the start of each new administration. As Charlie Savage wrote in the conclusion to his new book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (discussed in this thread):

Yet even if the victor of the 2008 presidential eleciton declines to make use of the aggrandized executive power established by the Bush-Cheney administration, in the long run such forbearance might make little difference. The accretion of presidential power, history has shown, often acts like a one-way rachet: It can be increased far more easily than it can be reduced. The annals of American history are now filled with precedents in which the White House has claimed the power to bypass laws and then acted upon that claim, especially in matters of national security. The zone of secrecy surrounding the executive branch has been dramatically widened. The Supreme Court has been sharply tilted [by Roberts and Alito, who had pro-Unitary-Executive records before their appointment, as discussed in earlier chapters] toward a sympathetic view of executive power, and the White House’s political control of the permanent government [the professional career bureaucracy] has been dramatically expanded. The federal statute books are now riddled with asterisks, thanks to the explosive growth of signing statements, which have made it clear that a president can routinely sign legislation while declaring himself free to ignore sections that restrain his own powers – a dramatic change that has the potential to take away from Congress its constitutional right to override a president’s decision to reject a new law.

The expansive presidential powers claimed and exercised by the Bush-Cheney White House are now an immutable part of American history – not controversies, but facts. The importance of such precedents is difficult to overstate. As Supreme Court justice Robert Jackson once warned, any new claim of executive power, once validated into precedent, “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”

Sooner or later, there will always be another urgent need.

[E-Sabbath]

Go ahead. Don’t prosecute the people claiming executive privilege. This way, when the next administration comes in, there’s no double jeopardy issues.

Edit: AUGH! Zombie! (Did you reply to the Yoo thread, Bricker? I’ve lost it.)

[gonzomax]

unhchr.ch - unhchr Resources and Information. The Geneva Convention does more that define torture. It defines an enemy combatant. It lays groundwork of how you can handle them. It is much more. We have busted pretty near all of it. We ought to be ashamed of ourselves.

[Richard_Parker]

[QUOTE=Bricker]
No, WE don’t expect the courts to “interpret the Constitution in bold ways.” To the contrary, we expect the courts to interpret the text of the Constitution as it is written, because to do otherwise is to arrogate to the judicial branch - the unelected, lifetime appointed judicial branch – a power that is absolutely inappropriate. We do NOT expect the courts to be the agents of bold, new initiatives. Those are the province of the legislature and the executive, those branches responsive to electoral replacement in case WE don’t like their bold ideas.
[/quote]

You’re misinterpreting what I said. I defined “bold ways” in the clause that followed it, “that they step on the authority of the legislature and the executive when they see fit.” Since the determination that our courts will perform judicial review, that has been their role. When a court defends an unenumerated freedom, they are reviewing the lawfulness of some executive or legislative action and overruling that action if, in their opinion, the Constitution tells them to do so. That is what makes the court interpreting the Constitution in counter-majoritarian ways different from the executive doing so.

And, to be clear, nowhere did I say they ought not interpet the text as written. Everything I said is consistent with textualism.

@Bricker

I disagree with this. We have utterly passed by the days of “John Marshall has made his decision.” When the courts can, without challenge, undertake to assume day-to-day operational authority over school districts for years at a time, they don’t need an army; they have the power they need. In todays world, the army doesn’t follow the President blindly; they follow what they perceive to be the rule of law – which is the federal courts’ to define.

That opinion is not consistent with history. Just look at the implementation of Brown v. Board. It took the executive use of the national guard, among other executive and legislative uses of force to bring compliance. The fact that the executive decided to follow the will of the court in that case (and not even in all instances) does not show that it will always do so. There are plenty of cases of the executive simply choosing not to carry out the will of the court; sometimes that results in a loss of executive legitimacy, sometimes it doesn’t. Today this happens not infrequently in immigration law, because people don’t really care if the executive abuses illegal immigrants or LPR’s who commit crimes.

@Bricker

The problem is that the courts MUST have the power to define and protect these freedoms, but they must not exercise that power beyond the plain meaning of the text.

Well, you’re assuming the truth of Textualism here, but even with that assumption you’ve said nothing inconsistent with my point. Textualists don’t have any more textual guides to interpret “privileges and immunities,” “liberty,” “secure,” or “rights retained by the people,” etc. than Aspirationalists.

@Bricker

I liken this to jury nullification: a jury always has the power to nullify; they need not supply the rationale for their verdict. But to do their job correctly, they MUST apply the law as given to the facts they determine exist.

That’s a whole 'nother debate, currently taking place on this very board.

@Bricker

I’m not nearly as worried about executive power, because we replace the executive every four years. Our federal judges serve for life, and are almost completely immune from direct public pressure; it’s in the extreme exercise of their power that we see things run counter to our notions of self-governance.

That’s one difference. But there are many in the other direction. Everything the court does can be overridden by Congress, though some things are harder to override than others. That isn’t at all true of the executive actions vis-a-vis the court (or even Congress).

As already pointed out, another big difference is that the executive can enforce its own decisions. Even if you believe that the rule of law is so firmly entrenched that the executive will enforce every court decision, there is still a big difference between the executive enforcing the prerogative of the court and enforcing its own prerogative. There’s a lot of room for interpretation at the Justice Department, as we’ve learned.

And finally, judges are of course appointed by the executive. The reverse usually isn’t the case (I kid).

[Bricker]

[QUOTE=BrainGlutton]
Where does the text say that?
[/quote]

In its every line. If the text is held to mean something other than what it says – if substantive alterations to the text’s meaning can be made and enforced by the courts – then the power of lawMAKING has moved to the courts and away from the legislature.

:dubious: I beg your jury pardon, what makes you think they’re not doing their job correctly when they nullify?

It’s a feature, not a bug.

No, it’s not. The hallmark of the law should be consistentcy – similarly situated people should be treated similarly. When a jury nullifies, they change the result for ONE person; the next poor slob may not be so lucky. They are NOT doing their job is they nullify, and this is generally reflected in the oath they take.

But the growth in executive power is not necessarily scaled back at the start of each new administration. As Charlie Savage wrote in the conclusion to his new book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (discussed in this thread):

So what? The precedents established by court ruling are equally enduring – in fact, arguably more so, since the principle of stare decisis is well-codified. Savage’s sky-is-falling analysis is filled with qualifiers like “has the potential to” – a tacit admission that the effects on future administrations are unclear. But a court ruling has a permanance that we need not speculate about – it’s real.

[Bricker]

[QUOTE=E-Sabbath]
Go ahead. Don’t prosecute the people claiming executive privilege. This way, when the next administration comes in, there’s no double jeopardy issues.

Edit: AUGH! Zombie! (Did you reply to the Yoo thread, Bricker? I’ve lost it.)
[/QUOTE]

Couldn’t find the thread. Link?

[Polycarp]

[QUOTE=smiling bandit]
If Congress wants to ban it, they can do so themselves. Relying on others to interpret vagueities of US law, then using it as a tool to bash them for shallow political gains, is simply rank hypocrisy. I have no real opinion or interest in the matter myself, but Congress needs to get serious about what it wants and simply do it.
[/QUOTE]

They did. The First Congress, to be precise. In the tenth Article of Amendment which they submitted to the states for ratification, ratified as the Eighth Amendment back in 1791. Of course, this does expect a court prepared to apply a “reasonable man” standard to what “cruel and unusual punishment” might mean – which I suppose a certain member of the Straight Dope Science Advisory Board will consider to be “emanations and penumbras”, and Bork any attempt to give meaning to the provision as unspecified in statute.

But that is because he is in my considered opinion, after reading his statements, very much uninterested in seeing the doing of justice, and only in the minutiae of the application of regulatory law. The almighty State may do as it lists, and no individual has any “rights” as against it.

In the days when Republicans stood for something meaningful, they would have called this “totalitarian.” Today, they call it “good politics.” One can only hope that someday they are judged by the same measure with which they judge. (Oh, excuse me, that’s bringing morality into it, and this is a discussion of legalistics. :dubious: )

[Bricker]

[QUOTE=Richard Parker]
You’re misinterpreting what I said. I defined “bold ways” in the clause that followed it, “that they step on the authority of the legislature and the executive when they see fit.” Since the determination that our courts will perform judicial review, that has been their role. When a court defends an unenumerated freedom, they are reviewing the lawfulness of some executive or legislative action and overruling that action if, in their opinion, the Constitution tells them to do so. That is what makes the court interpreting the Constitution in counter-majoritarian ways different from the executive doing so.
[/quote]

Er… I would characterize as simply interpreting the law, not as stepping on authority. The Constitution is the supreme law of the land; the courts cannot “step on the authority of the legislature … when they see fit.” They can only step on the authority of the legislature when the legislature has contravened the Constitution. But each branch must operate under its own understanding of the Constitution’s dictates. We cannot ask the federal courts to issue advisory opinions; the Constitution itself forbids that.

That opinion is not consistent with history. Just look at the implementation of Brown v. Board. It took the executive use of the national guard, among other executive and legislative uses of force to bring compliance. The fact that the executive decided to follow the will of the court in that case (and not even in all instances) does not show that it will always do so. There are plenty of cases of the executive simply choosing not to carry out the will of the court; sometimes that results in a loss of executive legitimacy, sometimes it doesn’t. Today this happens not infrequently in immigration law, because people don’t really care if the executive abuses illegal immigrants or LPR’s who commit crimes.

On the contrary, Brown tells the exact story I’m championing – the court’s decision was implemented, despite the fact that it has “no armies.” Ultimately, respect for the rule of law will ensure this.

Well, you’re assuming the truth of Textualism here, but even with that assumption you’ve said nothing inconsistent with my point. Textualists don’t have any more textual guides to interpret “privileges and immunities,” “liberty,” “secure,” or “rights retained by the people,” etc. than Aspirationalists.

No. We can look at what was meant when the words were written, if they were terms of art in common use at the time… and in the final analysis, we can honestly acknowledge that there’s a difference between not searching someone’s house (clearly mentioned in the text) and not imposing abortion restrictions (not remotely touched upon by text). Ultimately, that’s the issue: does the claimed “right” exist explictly? Is it an obvious and necessary consequence of a listed right? Or is it a “house upon the sand” - built upon supposition that’s in turn built upon supposition?

That’s one difference. But there are many in the other direction. Everything the court does can be overridden by Congress, though some things are harder to override than others. That isn’t at all true of the executive actions vis-a-vis the court (or even Congress).

How can Congress override the court’s finding that there exists a Constitutional right to abortion?

[Bricker]

[QUOTE=Polycarp]
They did. The First Congress, to be precise. In the tenth Article of Amendment which they submitted to the states for ratification, ratified as the Eighth Amendment back in 1791. Of course, this does expect a court prepared to apply a “reasonable man” standard to what “cruel and unusual punishment” might mean – which I suppose a certain member of the Straight Dope Science Advisory Board will consider to be “emanations and penumbras”, and Bork any attempt to give meaning to the provision as unspecified in statute.

[/quote]

It is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.

But that is because he is in my considered opinion, after reading his statements, very much uninterested in seeing the doing of justice, and only in the minutiae of the application of regulatory law. The almighty State may do as it lists, and no individual has any “rights” as against it.

I’m very interested in justice. I do not wish, in the pursuit of a temporary application of justice, to reach it by any means necessary. I support a ban on torture. I do not support a finding that the Constitution forbids waterboarding, any more than I would support a ban on torture reached by kidnapping the children of members of Congress and threatening their lives if the Congress refused to pass the bill.

[Mr.Moto]

I don’t know if others would consider this a hijack - but we know that al-Qaeda and others study our interrogation techniques for the purpose of training their personnel on how to resist them. Given this, I see no reason why it would be in our interest at all to make these techniques explicit or public knowledge.

And yet this is what some lawmakers want to do when they seek to ban certain procedures - or worse, restrict interrogators to the techniques in a single Army manual. That is just lunacy.

I don’t want to do everything to these guys, but I don’t want them to know what we’ll do. And I don’t see this sort of discretion as injurious to our values at all, so long as there are standards and they are adhered to.

Some things happen out of sight. Given my own background and experience, I’m not opposed to that. I just don’t want out of sight to mean carte blanche - and I think most people would agree with that.

[Richard_Parker]

[QUOTE=Bricker]
Er… I would characterize as simply interpreting the law, not as stepping on authority. The Constitution is the supreme law of the land; the courts cannot “step on the authority of the legislature … when they see fit.” They can only step on the authority of the legislature when the legislature has contravened the Constitution. But each branch must operate under its own understanding of the Constitution’s dictates. We cannot ask the federal courts to issue advisory opinions; the Constitution itself forbids that.
[/quote]

Ok. You would characterize it differently. That’s fine. It doesn’t change the truth of the matter which is that the Court’s institutional role is to interpret the Constitution in ways that contravene the will of the executive and legislature.

@Bricker

On the contrary, Brown tells the exact story I’m championing – the court’s decision was implemented, despite the fact that it has “no armies.” Ultimately, respect for the rule of law will ensure this.

My point was that the executive’s enforcement of Brown was not a foregone conclusion. I think a close look at the history bears that out. In any case, to frame this in a Brickerian manner, if I offer an example of the executive not enforcing a court decision in the modern era, will you change your opinion?

@Bricker

No. We can look at what was meant when the words were written, if they were terms of art in common use at the time… and in the final analysis, we can honestly acknowledge that there’s a difference between not searching someone’s house (clearly mentioned in the text) and not imposing abortion restrictions (not remotely touched upon by text). Ultimately, that’s the issue: does the claimed “right” exist explictly? Is it an obvious and necessary consequence of a listed right? Or is it a “house upon the sand” - built upon supposition that’s in turn built upon supposition?

It’s actually a pretty simple syllogism, especially because you believe that a right doesn’t exist unless it’s legally protected (IIRC).

The enumerated rights in the Constitution do not exhaust the rights the framers believed to be held in the people. (Ninth Amendment, among other sources.)

If the people have additional rights, the court must be able to protect them. (The definition of a right.)

Therefore, the court can protect rights which are not specifically enumerated.

These claimed rights do exist explicitly in words like liberty and privileges. And substantive due process asks exactly what you want it to ask: what did this word mean when it was written into the Constitution. What we disagree about is whether the founders intended to imbed a principle which can be applied to new facts, or a set of discrete freedoms currently in place.

@Bricker

How can Congress override the court’s finding that there exists a Constitutional right to abortion?

Constitutional amendment.

[E-Sabbath]

[QUOTE=Bricker]
Couldn’t find the thread. Link?
[/QUOTE]

http://boards.straightdope.com/sdmb/showthread.php?t=455418&page=2

Starts on the second page, for some reason. Easily worthy of a new thread. Interesting points: Yes, military operations in the USA, right, if you have soldiers running around putting down rebellions, I suppose they don’t need warrants.

The NSA works for the DoD. We are in a state of war, technically. Can they operate without warrants?

[E-Sabbath]

Huh. It’s not there. Well… damn. I better go start a thread on it when I get a chance, then. It’s certainly an interesting sort of issue. Sorry, Bricker. Back in a bit.

[E-Sabbath]

http://boards.straightdope.com/sdmb/showthread.php?p=9650942

There. Not the best op, but I want breakfast.

[Bricker]

[QUOTE=Richard Parker]
Ok. You would characterize it differently. That’s fine. It doesn’t change the truth of the matter which is that the Court’s institutional role is to interpret the Constitution in ways that contravene the will of the executive and legislature.
[/quote]

Sure, WHEN THE CONSTITUTION FORBIDS THAT WHICH IS DESIRED BY THE LEGISLATURE OR THE ELECTORATE.

Now, I realize this may seem like a pilpul (a term in Talmudic reasoning referring to an ultra-thin, hair-splitting distinction). But the ultimate fidelity to our belief in self-government comes down to how the courts “interpret” the Constitution. If it’s permitted and acceptable for the federal courts to read wholesale new substantive provisions into the Constitution and call it “interpretation,” then we have effectively created not an interpretation, but a super-legislature, effectively supreme over all branches and unanswerable to the electorate.

Now, you can say that abortion rights are just, valid, and necessary as a matter of public policy – that’s a debate for another venue. But when you look att he articles and amendments of the Constitution and say, “This document requires states to permit unfettered abortions in the first trimester, permits states to slightly regulate abortions in the second trimester, and permits states to strongly regulate abortions in the third trimester,” then you have gone beyond what any fair-minded observer can call “interpretation” and into new legislation.

My point was that the executive’s enforcement of Brown was not a foregone conclusion. I think a close look at the history bears that out. In any case, to frame this in a Brickerian manner, if I offer an example of the executive not enforcing a court decision in the modern era, will you change your opinion?

Perhaps, although there may be a distinction that is not obvious to me now but will become clear when you offer your example.

It’s actually a pretty simple syllogism, especially because you believe that a right doesn’t exist unless it’s legally protected (IIRC).

The enumerated rights in the Constitution do not exhaust the rights the framers believed to be held in the people. (Ninth Amendment, among other sources.)

If the people have additional rights, the court must be able to protect them. (The definition of a right.)

Therefore, the court can protect rights which are not specifically enumerated.

These claimed rights do exist explicitly in words like liberty and privileges. And substantive due process asks exactly what you want it to ask: what did this word mean when it was written into the Constitution. What we disagree about is whether the founders intended to imbed a principle which can be applied to new facts, or a set of discrete freedoms currently in place.

Not to “to new facts” – but to actual new rights, rights which themselves did not exist (or, if you prefer, “were not recognized”) prior to the case that recognizes them.

Constitutional amendment.

No, although Congress has a role to play, the states (three-fourths of them, anyway) need to agree to amend the Constitution. Congress itself cannot; if the could, we’d have an ERA amendment now.

[Richard_Parker]

[QUOTE=Bricker]
Sure, WHEN THE CONSTITUTION FORBIDS THAT WHICH IS DESIRED BY THE LEGISLATURE OR THE ELECTORATE.
[/quote]

Since we’re typing in all caps now, YES THAT’S EXACTLY WHAT I’M SAYING. You seem to think that those who disagree with your historical textualism are not basing their opinions on the Constitution. You’re factually wrong. They are. And they are looking to history. What they’re doing differently is looking for principles that were embedded by the framers and amenders. You’re free to disagree with that method, but you’re not free to call it something other than Constitutional interpretation–that is dishonest and false.

@Bricker

But when you look att he articles and amendments of the Constitution and say, “This document requires states to permit unfettered abortions in the first trimester, permits states to slightly regulate abortions in the second trimester, and permits states to strongly regulate abortions in the third trimester,” then you have gone beyond what any fair-minded observer can call “interpretation” and into new legislation.

You know, or should know, better than this. First, let’s separate two things. There’s the specific rule setup (the trimester system) and the right protected (the privacy of health and sexual decisions).

The rule setup is, of course, not in the Constitution. But this is true of almost every rule the court sets up, Scalia and Ginsburg alike. The court makes rules to implement Constitutional (and statutory) principles. That isn’t at all uncommon or disputed by anyone serious.

The right protected does have its source in the principles of the Constitution. At the time of the founding, these principles did protect certain intimate privacies and autonomies. The court has applied these principles to a modern understanding of the facts.

I get that you disagree with their interpretation. You don’t need to bold and underline your disagreement. But it is disingenuous to suggest that the court is not interpreting the Constitution at all.

@Bricker

Perhaps, although there may be a distinction that is not obvious to me now but will become clear when you offer your example.

There are both soft and hard examples of this. The soft examples include all of the areas in which executive agencies have discretion in administering judge-made rules. Immigration is a great example of this. Frequently the court will overrule the Board of Immigration Appeals and say they can no longer, say, remove immigrants who have obtained LPR status by marriage but whose spouse has died before the 2 year period. The immigration services will then use terrorism provisions to remove those people, an unreviewable act of discretion. In this way, the agency is able to continue acting unlawfully but not in a judicially-reviewable manner. The normal check to this is the loss of legitimacy of the executive branch, but of course an executive can only lose so much legitimacy and it matters little in the second term.

A hard example is the facts that led to the creation of modern civil rights class actions. In the 1950’s and 60’s, there was a widespread movement on the part of states to resist various civil rights decisions. On desegregation, for example, many states took the position that each particular instance of segregation had to be individually litigated. This was, in effect, disobedience to the Supreme Court and an intentional distortion of the rule of law. But the executive wasn’t willing to step in; and probably rightly so–you can’t send the national guard in to desegregate every bathroom. So this state strategy worked until 1966 when FRCP 23(b)(2) was put into place; though, interestingly, it wasn’t put into place in order to fix this problem. It was sort of a saving coincidence of history that the rule was revised in 1966 a way that allowed modern civil rights class actions.

@Bricker

Not to “to new facts” – but to actual new rights, rights which themselves did not exist (or, if you prefer, “were not recognized”) prior to the case that recognizes them.

No, the rights were recognized. The right of privacy was well-recognized. Griswold cites opinions from 1765! What you disagree with is the implication of that right. And that’s fine. But the right is there, as was well-established at the founding and since.

@Bricker

No, although Congress has a role to play, the states (three-fourths of them, anyway) need to agree to amend the Constitution. Congress itself cannot; if the could, we’d have an ERA amendment now.

No kidding. Did you know that Congress cannot pass a statute on their own either? In fact, Congress really can’t do anything on their own. Can we avoid making pedantic arguments that entirely miss the point?

[Richard_Parker]

Too late to edit, but I shouldn’t have used the words “dishonest” or “disingenuous.” I think you really believe what you’re writing, I just think you’re not fairly evaluating the opposing position.

[Shodan]

[QUOTE=Richard Parker]

@Bricker

How can Congress override the court’s finding that there exists a Constitutional right to abortion?

Constitutional amendment.
[/QUOTE]

Suppose the Constitution were amended to say -

In no state of this Union will abortion be allowed for reasons besides to save the life of the mother, at any time during the second two trimesters of pregnancy. Congress shall have power to enforce this via appropriate legislation.

Shortly after ratification a test case is brought to the court. They rule that the Constitution establishes that abortion may only be dealt with by the courts, and that the amendment is invalid. They claim this is established by a penumbra from the Ninth Amendment.

What, in your view, would be the remedy, if any?

Regards,
Shodan

[Richard_Parker]

[QUOTE=Shodan]
Suppose the Constitution were amended to say -Shortly after ratification a test case is brought to the court. They rule that the Constitution establishes that abortion may only be dealt with by the courts, and that the amendment is invalid. They claim this is established by a penumbra from the Ninth Amendment.

What, in your view, would be the remedy, if any?

Regards,
Shodan
[/QUOTE]

First, this would be a non-nonsensical ruling. Even Bricker would concede that, I think. An amendment can do whatever we want it to. The court cannot rule an amendment invalid unless it doesn’t follow the Constitutional method of amendment.

Second, in this impossible hypothetical, we could simply amend whatever provision the court thinks establishes that the previous amendment was invalid. In your example, it would mean amending the Ninth amendment, I suppose.

---

I know that it is common in some circles to believe that the court is simply pulling rights out of a hat, but this belief has no basis in fact. The court, agree with their conclusions or not, is actually looking at legal questions involving the text of the Constitution, historical practice, and how those principles ought to be applied. I agree that their intepretation of these principles can be shaped by political biases. But that is a long stretch from the court simply creating rights out of thin air.