No "Right" Without a Corresponding Legal Remedy

Great Debates
41

I noted your sarcasm in the very first sentence of my post, and I addressed your point re state’s rights later on in my reply to you. My point in noting Dred Scott and other cases was to raise the point, entirely germane to this discussion, that simply allowing the judiciary to find “rights” upon no basis other than their particular worldview is, to put it mildly, problematic. Anything can be justified as a “right,” even slavery – as it has.

I never said it did. I did say it illustrates the problem with standardless bases of judicial review such as “substantive” due process. Kindly stop putting words in my mouth.

Courts are different than legislative bodies. Courts are supposedly interpretive bodies, and are supposed to be adhering to standards when they interpret a given text. They are supposedly not exercising a will of their own, but only giving life to the documents they are charged with discovering. Consistency is the hallmark of proper juridprudence. That being the case, it is entirely on the shoulders of proponents of things like “substantive” due process to distinguish those cases they dislike from those they wish to promote. He who says Lawrence must also say Lochner.

Legislatures are different; by design, they exercise authorship. Inconsistency is not only acceptable in the legislative sphere, it is often necessary and sometimes even desireable. Lawmakers, being untied to precedent and the rigors of judicial reasoning, are free to allow gut instinct to guide them.

The system of checks and balances presupposes a judiciary that limits its powers to mere interpretation. When the judiciary overreaches, that system breaks down, and there is no effective check to stop them – amending the constitution is too unwieldy, and even if it weren’t, since the judiciary is tasked with interpreting any amendment the fox is left guarding the henhouse.

Not because they’re different, but because our government is premised on legitimacy being derived from the consent of the governed. Marriage is not an issue addressed in the federal constitution, the document encapsulating the mechanisms of government the governed have consented to. Ergo, it would be illegitimate for a federal court to reverse Missouri and Lousiana. Similarly, that same constitution effectively reserves marriage to the states by not explicitly giving the federal government authority over that area. Ergo, it would be illegitimate for Congress to interfere by passing statutes “defending” marriage (I’m looking at you, DOMA)

An action can be both morally wrong and perfectly constitutional. I agree that Missouri and Lousiana are acting immorally. That doesn’t mean they are violating anyone’s rights in anything but the rhetorical sense.

42

So, the ends justify the means? How do you feel about the exclusionary rule?

Not to mention the fact that I could make a pretty good case economics-wise that Lochner did not in fact “suck ass.”

I don’t consider the Constitution an “empty piece of paper.” Nor do I think the judiciary unnecessary. Intepretation of the text is a valid and necessary governmental function. I just don’t think they should make shit up on their own.

43

All these are perfectly valid points. But they do not add up to anything like, “The Constitution means anything at all and nothing in particular”. Nor does it establish the proposition “decisions that contradict the plain sense of the Constitution do not contradict the plain sense of the Constitution”.

The undoubted fact that there is a gray area does not mean that black is white.

I will ask what I asked before - what specific limit exists on the power of the Supreme Court that cannot be “interpreted” away? What check exists on the power of the Court to interpret the Second Amendment to say “the right of the people to keep and bear arms may be infringed anytime the government feels like it”? Or anything else at all?

44

You know, the only people I’ve seen saying anything like this are rejects from Wizard of Oz remakes which were created by strict constructionists to represent their opponents’ views. I agree with you and Dewey that there are limits; we simply disagree on how to identify them.

If you wonder at my irateness at your post a few days ago, this sort of wisecrack is precisely why I was angered. There’s an underlying presumption in Great Debates that “my opponent is a level-headed and worthwhile person with ethical values, who is advancing what seems to him like a cogent proposition founded in the merits of the situation, but with which I disagree.” When we cross that line and begin imputing absurdities to our opposition, we cease to discourse intelligently, and begin to play “Dueling Monologues.” And I had thought you above that sort of thing – which is why it’s been so interesting to debate with you in the past.

The text of the document, of course. There is nothing in the world that can make “No bill of attainder or ex post facto law shall be passed” mean “…except this one.” But identifying a “privilege or immunity” that is not immediately obvious to you by the implications of other clauses in the law, the generalized statements I pointed out earlier, and the precedents set by previous decisions, is not pulling a right out of the esteemed Justices’ asses – it’s attempting to figure out precisely what the validity of a claimed right may or may not be, given the circumstances surrounding the claim and those considerations. Examine Mr. Kennedy’s careful construction of the reasons underlying why he identified a “right of autonomy in personal relationships” in Lawrence – it’s one of the finest pieces of judicial logic I’ve seen since Mr. Marshall told Mr. Marbury he couldn’t get his J.P. commission.

Now, “come, let us reason together.” :slight_smile:

45

The problem, of course, Poly, is that you don’t see the text as a meaningful limit. If you can’t find what you want in an actual provision of the constitution, you are more than willing to reach for “substantive” due process – essentially allowing those two words to mean anything and everything, rendering the idea of the text as a limit on judicial power an absurdity.

Due process is not, and should not be, a rorschach test.

46

In the same near-snide tone, Dewey, I can point out that your system of interpretation would permit states to take any liberties they like with individuals’ perceived and explicitly defined rights, so long as the governmental agencies involved are prepared to ensure that they cross every T and dot every I as regards “procedural” due process.

I do see limits implicit in the broad phrasing of the text; you just don’t view it in the way I do. And unless we need to take it to the Pit, that’s probably where it needs to be left – unfortunately – since we do not seem to be communicating at all.

47

Let me see if I’m understanding the thrust of this thread. This is a “facts on the ground” or “brass tacks” type of thread. All the rhetoric of “rights” boils down to hot air when you get down to the base facts. A right without a remedy can not be freely exercised and is therefore not worth the paper it is written on.

Homosexuals who are denied marriage licenses on basis of the gender of their co-applicant have no remedy to force the state to issue the license. Therefore when the dust settles, they have no marriage license and nothing they can say will change that.

Is that about it?

Enjoy,
Steven

48

Sometimes, sure. Sometimes, the means justify the end. And in pretty much every situation, you have to consider both the means and the ends.

So could I, actually. I’ve got a pretty serious libertarian streak when it comes to economic matters. But Lochner clearly sucked when judged against the will of the people, so I’ll stand on the assessment.

They don’t. They make it up based on the text of the Constitution. My point is that it takes both a reader and a text to yield meaning. One without the other doesn’t get you anywhere.

49

I don’t have time to give a full response now, but this bears responding to immediately: my post was not suggesting that you are a racist for acknowledging that at one point in history people had the right to own other people. That is absurd, which was my whole point. I have absolutely no reason to believe you’re racist, and for that matter, I have no reason to believe you’re homophobic. What I was trying to demonstrate was that for the institution of slavery to persist for so long, people had to distance themselves from the core moral issue.

When I hear people suggesting that same-sex marriage is a new concept, or it’s unrealistic to expect it, or it’s a made-up “right,” or it’s fundamentally different than heterosexual marriage, I have to wonder: what is it they see, exactly, when they see me hugging and kissing my boyfriend? Are they repulsed by it? Or do they find it comical? Is it just completely alien to them? Are we faking it? Is it just some ridiculous novelty, or a phase that will pass? Or is it just a sinful, abhorrent act that they can’t stand to watch? Would they rather just not think about it?

50

Actually, no, you can’t say that, in a snide or any other tone. If a right is “explicitly defined” in the text of the constitution or elswhere (federal statute, state constitution, state law, etc), then my system of interpretation most certainly does not allow the states to “take any liberties they like” with those rights. A belief that “substantive” due process is a contradiction in terms does not mean I also believe that the other provisions of the constitution should fail to be enforced.

And yet you never see fit to describe exactly what those limits are in any concrete, meaningful fashion. If pointing up a very real shortcoming of your stated view is pit-worthy, so be it: I would take your recourse to a forum devoted to profane personal insults as a demonstration of the weakness of your point of view.

51

Suffice it to say I categorically reject a worldview that allows the judiciary to do whatever they want so long as their own internal moral compasses tell them an issue is of special importance. That a dictator is benevolent doesn’t change the fact that he is a dictator.

“Clearly?” You’re kidding, right? You surely don’t think that to be fundamentally self-evident to everyone, right?

When two slender words are allowed to mean anything and everything, the judiciary is no longer basing their decision on the text of the Constitution. Convenient redefinition of terms doesn’t change the substance of what the judiciary is doing when it relies on “substantive” due process.

52

On the converse side, why should we be subject to the arbitrary irrational whims of the majority just because they say so?

53

Because that is the principle upon which our government is founded: self-governance.

54

What Bricker said.

55

Unless Mom has some 'fessing up to do, we were NOT separated at birth. :slight_smile:

Just thought I should point that out.

56

Me too. My point, in case you missed it, was that it takes both the judiciary and the law.

I concede that I do not have public opinion polling data from the early 20th century on the precise point that working hour restrictions were favored by a majority of the public. My sense is that such reforms were, historically speaking, widely popular. If you have evidence that it is not historically true, and that the public really couldn’t stand the thought of placing limits on working hours, and that the New York (?) legislature was stomping on the will of the people in that matter, I will be happy to consider your evidence.

Ah, yes. And yet those “two slender words” must mean something. That you and I disagree over what they mean hardly leads to the conclusion that your reading is blessed by the text and mine is created by mere whimsy.

57

Goodness, and here I was laboring under the mistaken belief that there were any number of massively important barriers between the populace, those who govern it, and unfettered power.

58

In other words, means are important, unless a judge feels the end is really, really important, in which case he can ignore those means entirely. Forgive me if I’m unpersuaded.

So is it your contention that widespread public demand for a particular thing is what makes a contrary decision “clearly suck-ass”? Do you really want to march down that road?

Yes, they must mean something. But the sheer breadth of things to which they’ve been applied makes it pretty goddamned clear that the judiciary isn’t taking a principled understanding of those two words and applying them to cases as they arise. Quite the contrary: the words are being redefined to suit the whims of the judiciary. An infinitely malleable word is a meaningless word.

59

Unless you’re a faggot. Then it’s acceptable for everyone else to tell you how to live your life.

60

You should be unpersuaded, given that I did not even remotely attempt to make such a claim.

Try the word with me: Both. As in, “both” ends and means are important. “Both” ends and means must be considered. “Both” chocolate and peanut butter are necessary to make a satisfying candy snack.

See, it isn’t that hard, is it?

One factor, among others. And hey, feel free to argue that I was wrong in claiming that the outcome of Dred Scott licked big sweaty rhinoceros balls. Or just keep pounidng away at labor laws to no particular purpose or effect.

An empty word is also a meaningless word. And yet, somewhere between empty and infinitely malleable lies a sane and reasonable reading of the words at issue. Me, I look at questions like whether parents should be able to teach their kids in foreign languages and whether unmarried adults can screw themselves silly, and I think hey, that sounds like a sane and reasonable reading.