Here’s a more meaty hypothetical, then:
The Court rules that unborn children have a liberty interest in life, interpreting the “liberty” guarantee of the Fourteenth Amendment, and that any state which permits abortion of any kind is infringing upon that liberty interest.
What would be the remedy for that ruling?
I fail to see how a constitutional amendment couldn’t remedy that. It could force a particular interpretation of liberty, or it could directly provide for whatever rule of law Congress wants, or it could make a rule about whether the liberty clause applies to unborn children without mentioning abortion.
No, an amendment can do whatever the court wants it to - that’s the point.
The court rules on the Constitution.
But that’s the point. You keep assuming that they will consider the text of the amendment. What makes you believe they would do that?
Actually, it is mostly based on Roe v. Wade.
Well, maybe not ‘thin air’. But certainly not out of any specific text of the Constitution, and in direct violation of some of the text - the Tenth Amendment, specifically.
Simply making stuff up out of “penumbrae” and “emanations” goes well beyond interpretation.
Regards,
Shodan
The fact that they always have before?
But how does it conflict with the Tenth Amendment?
BTW, now that Mukasey has been in office five months, does anybody have any fresh thoughts on the OP?
You know, Mukasey . . . The thread’s about Mukasey . . .
So the only remedy for a decision made by five unelected, lifetime appointed judges is one that requires 218 Congressmen, 51 Senators, and three-fourths of the fifty state legislatures acting to insert specific, detailed language into the Constitution.
Although the dialogue has returned to older issues being revisited, that’s only because I did actually add some new (rather dispiriting) news about the AG that revived the thread in the first place.
Well, since this is not a fact, as witnessed by Roe v. Wade and others, your reassurance doesn’t help very much.
Unless you would like to point to the text in the Constitution which mentions “abortion”.
It’s real cute how you did that. First respond to a point, then try to forestall a response to it.
Didja see how it doesn’t always work?
Regards,
Shodan
As long as we’re reviewing 8th grade civics, we should note that you can also amend the Constitution by convention. That would be a blast.
See my point? That big giant thing right here?
Now see you? That little speck way way off in the distance?
That’s how far you missed my point.
Actually, I was making fun of your point.
No, really, what about Mukasey? Unlike Gonzalez, he ain’t been in the news much.
Jon Stewart breathes a sigh of relief, knowing that his job is safe.
Look, it’s a simple principle. It’s contrary to our idea of self-governance that five unelected, lifetime job-serving people can make a decision that amounts to substantive new law where it will take 218 Congressmen, 51 Senators, and three-fourths of the fifty state legislatures to undo it.
That they will have the power to do it is necessary. That they exercise that power is not desirable. Substantive changes in law should come from the people we elect.
If a judge says to himself, “It’s time for this country to take a bold, new step in the law, and I’m the one to make it happen with this decision,” he’s in the wrong business. The courts should apply the law as the legislature intends it to be applied. They should apply the general rules to facts of specific cases. They should NOT be the agents of major social change.
I oppose abortion; I believe it to be the murder of a living human being. But I’d be firmly against a finding that the Fourteenth Amendment protects the life of the unborn. That’s a substantive leap, and it would be excellent policy if imposed by the legislature. But imposed by the courts, it would be a usurption of the legislative role.
You suggest that your vision is equally valid for the judciary. It’s not, because your vision removes from the people their power to govern themselves; it creates a cadre of “philosopher kings” to rule us.
If Republicans continue to appoint federal judges, perhaps the day is not too far away when my hypo about the Fourteenth Amendment and the unborn could come to pass. If it does, will you still be as passionate a fan of judicial power as you are now?
You do understand, I trust, that the point of that institution is to provide decisions that are insulated from day-to-day political whims and are instead based on more fundamental principles of justice and democracy and all those other penumbrae.
Why are you conflating decisions based on the readings of statutes with decisions based on Constitutional principles? Statutes are as easy to change as to enact. Amendments are *supposed * to be hard to make, and are *supposed * to be insulated from etc…
Who would do so by, in turn, appointing and confirming individuals who provide the above decisions, one might expect.
Bzzzt. Wrong. *Nothing * the courts can do is beyond overruling. They are *not * “kings”, and “philosophizing” is inescapably part of their job.
I look forward to your upcoming Staff Report explaining “case law”.
Let us recall, for a moment, the context of this argument. My position was that when the judiciary interprets the Constitution in counter-majoritarian ways, that is less bad than the executive doing so. My several points, some now unrefuted, included one arguing that the court’s institutional role is to interpret the Constitution in counter-majoritarian ways, where the role of the executive is to exercise its power gingerly and in accordance with the prevailing views of the populace that elected it.
That has spun off into a debate about, functionally, whether Roe v. Wade is legitimate. That’s fine. It is tangentially related, I suppose. But let’s not forget the forest for the trees. Even if Roe crossed the line, I still maintain that decisions like Roe represent less of a threat for all the other reasons listed above (enforcement, ability to overturn, etc.)
I fully agree. What I disagree with is your definition of “substantive new law” which is large enough to capture any instance in which the court restricts the power of the other branches in specific ways based on principles embedded in the Constitution. Contrary to your model of judges and justices waking up one morning and deciding to change the law, judges and justices are brought cases of the government acting in ways that are unconstitutional according to our modern understanding of the principles therein. They have no choice but to interpret the Constitution. The question is about the best way to do so.
Some prefer a mode of interpretation which says that if the Constitution doesn’t mention the specific word in question, it is therefore silent on the issue. I think that is a very mistaken view of the Constitution. Even Scalia rejects that kind of literalism. So we need an interpretive mode that goes beyond the plain meaning of the text. Scalia chooses historical originalism–he would ask what the framers and their contemporaries thought the text meant. His office is filled with the first editions of English dictionaries. And he goes one step further. He says the framers did not intend to embed principles whose application might eventually surprise those framers even though the results were a clear consequence of the intended principles. It is that last step that I think is particularly open to debate.
Your continued effort to paint the opinions of those who disagree with you as entirely illegitimate, and your own view as simple and obvious undermines your advocacy. These questions are anything but simple and obvious.
On my way out the door to dinner, but I wanted to briefly answer this point.
It’s not that the contrary view is *illegitimate[/i[ – it’s that the contrary view does not embody the notions of self-governance we profess to follow.
It’s a trade-off. There are really two key principles in our Constitutional Democracy: self-governance run by the majority and principled limits on what that majority can do. The second one is what makes our system unique. There had been other democracies before us (though not that were quite as democratic). But there had not been this notion of judicial review based on a written set of Constitutional rules. Heck, England still doesn’t have that–Parliament can change the Magna Carta as easily as it can pass a statute. Judicial review that can only be overruled by amendment is the keystone of our Montesquieuean system. Such rulings violate the self-governance principle, but they uphold the second principle of limits. The two principles are in conflict, and any theory has to reconcile the two.
This notion of judicial review demands that unelected judges (for whom the executive appointing them is made responsible) make very difficult decisions about constitutional principles. They sometimes have to step on the toes of the legislature. This is what I meant by boldness.
What they do might seem like law-making, but it isn’t (well, it is, but not in the legislative sense). Judges aren’t supposed to make the laws a legislature would make. They are supposed to prevent laws from being made that violate the core principles we set up ahead of time. That is what Roe v. Wade does. In that case, the balancing of rights was extremely difficult for the court. The court, as you know, recognizes the rights of the fetus, which is why as that fetus gets closer to personhood, states are more free to regulate abortion. But the court also recognized a right of women to be free from governmental interference in personal medical and sexual decisions. To balance those rights, the court set down a rule that looks very much like a law. It looks like an administrative regulation. But it isn’t. It is a rule about which laws violate the balance of rights. It is no more substantive law than is the complex balancing of Jackson’s Youngstown dissent, or than the complex rules of standing.
If you read my other posts of jurisprudence on this board, you’ll see that I’m actually much more sympathetic to historical textualism than I have appeared to be in this thread. I think Scalia is right about a lot of things he says. But I also think that the question is complicated. No one can read the exchange between Dworkin and Scalia in “A Matter of Interpretation” (a book I highly recommend if you haven’t already read it) and conclude that this a simple issue which is resolved on the basic principles you’re now invoking. I have not yet been convinced that the Constitution does not contain principles whose application would have surprised the drafters.
It takes a long time for us to realize all of the consequences of an idea. A clear consequence of the idea in the Fourteenth Amendment is that discrimination against women that doesn’t have to do with real gender differences is unlawful, even if few saw that consequence at the time. If you look at the history (or even the practice of the modern Congress), it seems clear to me that the nature of rule-making in large bodies is that there is no one clear intent in any law or Constitutional clause. There is only the finally agreed upon text, which different framers thought would do different things and should ultimately be interpreted in different ways. If the same adopters can have simultaneously different views of the ultimate import of a clause, that means that at least some of them will be surprised about the eventual effect.
One final point (and if anyone got this far, I salute you). Anchoring judicial review to these principles, which can be quite vague, admittedly means more freedom for unelected judges than the alternative interpretive mode which would have us ask simply whether the First Congress would have passed such a law. But it is still an anchor. It isn’t the same as saying that judges are free to do whatever they think is best.