Sorry if you took that as a personal attack, it was never meant to be. It was aimed more at people like Bork who are so convinced that their way is the only proper way to interpret the Constitution, that they refuse to acknowledge there are other, equally vaild, ways of interpreting the Constitution. Again, I’m very sorry if you took it personally.
I guess it was a loaded question because it gave you only two choices, injustice or process. Fortunately for minorities, there is a third option, non-originalism. That way you can honestly interpret the Constitution and still not tolerate gross injustices.
Slavery was unconstitutional prior to the 13th Amendment, unless of course you weren’t considered a full person, like blacks. Slavery is a very good example with one of the flaws of originalism, that determining the intent of the framers and being bound strictly by that intent, is sometimes impossible. Clearly if slavery had involved white people, it would have been considered unconstitutional by the framers. Too bad for anyone who wasn’t white, though. But some framers thought it should be, others that it was, and yet others thought it wasn’t. It is also a good example of how convenient it is to define rights, not by what they stand for, but by who enjoys them. Slavery of white men… unconstituional and bad. Slavery of black men… constitutional and tolerated. Denying marriage for heterosexuals… unconstitutional… Denying marriage for homosexuals… constitutional. When you define the right by those who get to enjoy it, it really isn’t much of a right is it?
Sure is a heck of a lot easier to blame guys dead for 200 years for injustice rather than blaming a majority bent on destroying a minority. How convenient.
But the Constitution is one where political expediency was put ahead of what is right. It was created by people who did not agree on a great many issues, and it’s false to believe there is any one “intent” to be determined. If you want to dig up Jefferson, Madison, and Hamilton, (well maybe not Hamilton), give them your education and experience, I’m betting they would be appalled that a minority is unprotected from the tyranny of the majority.
Yeah, we only had to fight a civil war for the “negroes” and wait another 90 years for segregation to end. How long should homosexuals have to wait until they get treated the same as everyone else? 20? 30? 100 years?
Good point. There are many flexible ways to deny a minority their rights. I never thought of that.
OK, I can see you aren’t going to answer the actual question.
But just for the record, I’m not suggesting that we blindly follow the intent of people long dead. The constitution is amendable, and has been amendment several times specifically to address the oppression of minorities (or the politically powerless). In that sense, it is a living, changing document.
Your question, John, and Dewey’s similar question are less questions than pits dug in a path and covered with leaves and twigs. Both imply what is, to my mind, a deceptive context: both imply that I agree with you that the “activist judges” rulings are deliberate contradictions of the Constitution, albeit for a higher good. I do not so agree, so do not feel bound to explore the theoretical limits thereof.
As to whether a judge ought to be so willing, thats another issue entirely. A different kettle of piranha.
I might ask you or Big D where, precisely, in the Constitution is says something like “OK, this is all the rights there are, we got 'em all, so don’t start sticking stuff in here that doesn’t belong, because we got 'em all.” But that would be a slightly dishonest question, if posed, it would be posed simply as a satiric rhetorical device. If you didn’t answer the question as posed, I certainly wouldn’t be foolish enough to try and pretend you are crushed and deflated by the sheer brilliance of my insight.
No it doesn’t. Both of us are just trying to understand what are the fundamental principles you are advocating; what limits you **would **put on judicial discretion.
Pose it if you want, but the answer is clearly “the constiution specifically says in amendment #9 there are other rights”. No tricks. No problem answering.
And I certainly haven’t done any such thing either. We’re in the process of trying to understand each other’s position and how we got there. One key method of doing so is to ask questions. No one question is the end of the debate.
You have propossed actions (ie, your death penalty analysis) that when generalized into an overall philosophy, seems to me will not work the way you claim it will. That’s all.
Honesty, I suppose is in the eye of the beholder. I do wonder what limits exist under your scheme, however. Are there any gross injustices in your view that cannot be legitimately remedied with some creative constitutional interpretation?
This is a breathtaking assertion on your part. I’m sure you’re prepared to back it up, right? You have some historical ground for making that statement – a judicial opinion, an opinion of a framer, hell, a newspaper article dated pre-1860 that substantiates that claim, right?
In fact, white slavery existed in the US well after the founding, in the form of indentured servitude. It gradually fell out of favor, but at no point that I know of was it considered unconstitutional or even illegal, at least until the passage of the 13th amendment.
Cite for any framer who thought this. Just one will do. You used the modifier “clearly,” so I assume that you have unquestionable evidence to back your assertion.
While many of the framers were in fact opposed to slavery, its constitutionality was not in question by any of them. Indeed, Article 4, Section 2 clearly sets forth a scheme for mandating the return of runaway slaves.
When has anyone said the denial of marriage to heterosexuals would be unconstitutional? Indeed, if the states wanted to go completely topsy-turvy and only allow gays to marry, denying that right to straight persons, there is nothing in the constitution that would prevent that from happening.
Who’s blaming dead guys? I blame the legilatures of the various states for being collosal dickheads about the whole gay marriage question. The fault for the injustice lies with them. The mere fact that the constitution does not provide a remedy to that injustice does not absolve them of responsibility for perpetrating that injustice.
Indeed. Which is one reason why “unconstiutional” is not synonymous with “unjust.”
Heh. You think those guys would be appalled that gays are denied the right to marry? You’re funny.
A Civil War fought, I might add, in part because of a Supreme Court decision, Dred Scott, which holds the dubious distinction of being the first-ever invocation of “sustantive” due process by the high court. Activism cuts both ways.
You asked for an example of a right that would be infringed. I pointed one out.
Then why the hell did you say you could name one such right for any one that would be violated by allowing children to drive? We don’t take positions we don’t hold just for the fun of arguing; that’s a serious violation of etiquette.
I’m glad you agree, but you don’t have to be a dick about it; that trivializes and undermines the principles behind our view.
I would have hoped you’d care a little more about being taken seriously.
Giving that “argument” a modicum of respect for just a moment, where does the gayness enter into it? You’re at just as much risk after a straight wedding. Even that premise, silly as it is, does not lead to allowing gay discrimination.
Thanks, I guess, for underscoring that there are no arguments based on anyone else’s rights for continued discrimination. All that’s left is the view some still hold that following process, a particular process based on a particular philosophy at that, is even more important than one of our most fundamental principles, even when that principle is very clearly stated in the Constitution and precedented in case law. But that’s easily dismissed as simple carping at best, and closet (even unconscious) bigotry at worst.
Maybe it came across wrong… I was going for an “if you can enumerate that, I’ll eat my hat!” vibe. (If only there were an emoticon for that.) I was confident that whatever you tried to pass off as a right that might be violated by allowing minors to drive would be either so far-fetched or so unrelated to age that you’d make my point for me…
… like so. Where does the driver’s age enter into your scenario?
You have a right not to be run over by anyone, no matter how old they are. In fact, your argument could be used (with equal validity) against driving in general: “I’m sure this will be your last thought as you lay dying, run over on the sidewalk by a guy on his way home from work: that he had every right to do so, and in no way was infringing upon yours.” After all, if anyone is allowed to drive, there’s a chance he might run you over… but that’s the fault of the individual driver, not the DMV. Just as if you get hurt at a gay wedding, that’s the fault of whoever caused the accident, not the decision to legalize SSM.
Agreed. I do think following the process is important in the long term, though. “Discovering” rights that traditionally haven’t been recognized is fine for helping people immediately, but they won’t really be accepted as legitimate unless they’re put into law - just look at abortion, 30 years after Roe.
Well, I actually laid out a few earlier, if you had read them. I said: “Well, the power to appoint judges, the power to Amend the Constitution, the power to approve judges, the power to impeach, the power to set jurisdiction, and the power to establish inferior courts. Add to those, the judiciary’s lack of enforcement ability, their own interior checks, and the fact that a vast majority of judges have shown their own judicial restraint, and you have plenty of checks on the power of the judiciary.” I’ll also paraphrase some comments by Judge Howard Levine, and point out judicial discretion is constrained by the case and controversy, the record, the need for majority, the need for public confidence, reliance on convention and custom, including the duty to partake in “objective rigorous analysis”, objectivity, and the need for a principled basis for decisions. Judge Levine lays them out much better than I ever could.
You mean besides the current culture war against science? . Give me examples of “gross injustices” and I’ll answer. The current anti-environmental legislation and executive branchs refusal to enforce are, in my opinion, gross injustices, but I can’t imagine any way they would be found unconstitutional.
Here is a good start. You could also read Frederick Douglas’ “Unconstitutionality of Slavery” or Spooner’s work by the same title. There is also a discussion of the Quock Walker cases. Believe it or not, I disagree with the Dred Scott decision too.
It “fell out of favor”, in part, because it was cheaper and easier to import African slaves.
Read my above cites. Do you think if a legislature allowed for the enslaving of white, rich, property owners that they wouldn’t think that was unconstitutional? Intriguing idea that.
No it doesn’t. It says: “No person, held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due.” Oddly enough, the Constitution doesn’t once mention slavery. Spooner and Douglas both have discussions on the relevance of that.
As Douglas points out:
I would agree that the Constitution does not textually forbid slavery. It would have been impossible to obtain ratification if it had. So the abolitionist founders accepted a compromise, but one that did not specifically mention slavery by name.
While arguing these issues, there is a certain part of me that would be much like Posner in his desire to strip away all the niceities. Of course slavery was tolerated, and I’m sure the original originalists would agree that it was not constitutional. But given the hindsight we enjoy, their desire for flexibility in the Constitution and the hatred that so many of the founders had for slavery, I believe that they would, in fact, support a flexible view of the Constitution that would allow a court to find slavery unconstitutional.
Spooner also makes a good point about the problems determining the “intent” of the framers by arguing, as I so poorly try to, that there is more to Constitutional interpretation than just determining original intent. He states:
Obviously, I think legislation that only allows homosexuals to marry would be unconstitutional also. While I agree that the legislature would have the power to completely disassemble “civil marriage” without violating the Constitution, if it does recognize a “civil marriage” it must do so without violating the Constitution. Which is why it is so incredibly easy, and, in my view, dishonest, to define “rights” only by those who have been granted that right in the past.
But those dead guys bear the responsibility for your refusal to deal with that injustice. The “sorry my hands are tied” shrug while the majority inflict their hatred on the minority troubles me greatly. Once again, to quote Judge Levine: “Even if it were possible, I would not eliminate concepts of morality, justice and fairness from the judicial process. Such values, of course, should not merely be based on the personal moral code of the judge, but rather the historically enduring standards of righteous conduct and principles of justice that reflect the best in our national character.”
You do so love the spelling nitpicking. I do it too, and it’s kinda fun, ain’t it. Makes the other guy seem like he’s somehow your mental inferior.
I’m so glad you find such humor in the centuries long practice of discrimination and animosity to homosexuality. Glad I could give you a good laugh at that. I’ll highlight the portion of my statement that you seemed to miss: If you want to dig up Jefferson, Madison, and Hamilton, (well maybe not Hamilton), give them your education and experience, I’m betting they would be appalled that a minority is unprotected from the tyranny of the majority. You see, I’m crediting you for your position that you believe that the same sex marriage ban is unjust. A very progressive attitude that, for the most part, did not exist when the founders were alive. Believe it or not, the people’s whose intent you need to follow were also, by and large, bigots. However, I do not believe they were hopeless in their attitudes, and would gladly accept the premise that the judicial branch can act as an actual check on the legislature.
Good thing originalism would never have a negative effect :rolleyes:
I hope the Levine piece and my other statements help clear this issue up. The judiciary is always bound to only decide the case before it, and to do so in light of and while interpreting the Constitution. We just disagree on how narrowly the Constitution has to be interpreted. Personally and politically, I would not want 9 non-originalists on the Supreme Court either. That’s for the same reason I wouldn’t do away with the filibuster option. I think it’s good for the country to avoid extremist elements of both sides. Moderation in all things, if you will. However, I would be terrified if SCOTUS took Dewey’s position and began to find that there is no right to privacy, there is no right to sexual intimacy, there is no right to reproductive choice, no right to marry someone of your own choice. The legislature could, without judicial intervention at all, institute whatever draconian measures it wishes. As Posner stated: “Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple’s second child and place it in a foster home…We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution.”
If you’re rferring to the power to amend the text in the Constitution, I would suggest that under your view of the judiciary’s powers, this is an almost meaningless exercise: they have the power to amend the Constitution’s meaning almost without regard for the written word thereof.
And on what hook do you hang these other restrictions? What process or doctrine, in your view, prevents a federal court from finding that Congress MUST establish a particular inferior court, in order to give full effect to the Constitution’s guarantees? What would stop the Supreme Court from ruling that the Ninth Circuit is too big to effectively serve the states assigned to it, and that the denial to citizens within those states fo equal access to federal dockets reprents a denial of both substantive AND procedural due process, and that Congress must act to correct the injustice?
Don’t worry - judges act as their OWN check on their power, so we need not fret?
In that case, I’m sure a federal judge would never take over a school bussing system and issue specific operational orders for years on end, right? Since they have such effective self-checks, and all.
The judiciary’s lack of enforcement ability is indeed a check on their power, but not in a good way. For this check to be imposed, we would have to imagine the open defiance of a court’s orders, on par with Jackson’s famous brush-off of Marshall. I agree it works to prevent an outright coup; I don’t agree it’s wise public policy to expect that this will be used on any sort of a regular basis.
But it is precisely that LACK of a principled basis for decisions that I, at least, am questioning. A “principled basis” where the overriding principle is the judge’s own conscience is hardly worthy of the term. And a principled basis that relies on rigorous methodology, fairly applied, does not take us where you would have us go.
I would probably disagree with you, just on principle , but I honestly don’t understand what you’re saying. If the federal Constitution is amended to make the ban on same sex marriage constitutional, wouldn’t that pretty much finish it? The legislature would have enacted their legislation, the judiciary would have acted as a check on that power and found the legislation unconstitutional. Then the legislature checks the judicial power, and amends the Constitution to make it constitutional. As abhorrent, vile, and bigoted that Amendment would be, it would still be the law. Or am I missing something?
Again, maybe I’m slow on Mondays, but I don’t follow you.
You don’t need to not fret, but you also don’t have to declare war on the judiciary, pretend the judiciary is attacking religion, and paint it to be a bigger threat to democracy than terrorism. No matter who is doing it, judicial discretion is always a concern. But any power can be abused.
Okaaaaay. I’m pretty sure a federal judge has, indeed, done just that to effectuate it’s rulings on desegregation. So, yes, it has happened.
It’s not wise public policy for a judge to go so far as to require it to be checked by non-enforcement. But that doesn’t mean the check isn’t there, does it?
Well, let’s see what Levine says:
Seems like there’s a fair amount of limits on the discretion involved in common law interpretations like Levines. Creating a strawman where an out of control judiciary takes over and establishes a government by judicial fiat is still a strawman. I could just as easily paint pictures of a legislature getting out of control and forcing every second child to be killed in utero ala China’s policy, with no real check by the judiciary. We can argue these absurdities all day and night if you wish, where process is forgotten and horrific results occur. Heck, I could paint a picture where the legislature goes so far as to telling consenting adults that they cannot have sexual relations with someone of the same gender, or that they will extend a right, say something like marriage, only to people they believe are morally superior. But those kinds of injustices would never happen with a enlightened legislature right? RIGHT?
I absolutely acknowledge the possibility of an out-of-control legislature - and executive. But in each case, the people have the option of firing them: 2 years for every member of the HOuse, and for 1/3 of the Senate, and 4 years of the executive’s misuse of power, and the people can let the axe drop. Not so with the federal judiciary.
As a matter of wise public policy, the powers of the unelected, lifetime officeholders need to be addressed with a much more jaundiced eye than those of a legislature that depends on the public’s continued acceptance… if self-governance is to have any real meaning…
The fact that they are unelected, lifetime officeholders certainly makes them harder to remove if there is abuse, but it also helps keep them more from the political sphere, as the founders intended. As an institution, the judiciary is meant to be a check on the more political, more compromising branches of government. While I think that works in their favor for making determinations about the Constitution and what it requires, you are absolutely correct that it does make it harder to remove them. Impeachment and removal for lack of “good standing”, would be tough rows to hoe (or ho, if you read that recent, highly amusing footnote in the 7th circuit opinion in US v. Murphy). And while self-governence is vitally important, I do not believe non-originalism is a threat to that, while I do see many more problems with injustice at the hands of a majority.
We are living in the end times: a federal court took judicial notice of Ludacris. <snicker>
This is, I suspect, a pretty cogent summary of our differences. I believe non-textualism is a threat to self-governance, and while I acknowledge the serious problems with injustice at the hands of the majority, I believe those problems are curable over relatively short periods of time… provided the pendulum is not pushed the other way first by the very acts of judicial overreaching that you are praising as the solution to such injustice.
What do you consider “short periods of time”? We had to wait 80 years and fight a civil war over slavery. We had to wait another 90 years for an end to state sponsored segregation. We’d be in serious danger of not having the right to non-procreative sex, privacy, etc. I suppose to your mind, had there been no SDP, the legislatures would have recognized the rights we today hold so dear. However, I’m not so sure.
How long should homosexuals have to wait before they are treated the same as everyone else. They’ve been waiting 200+ years now.
And, given the climate of evangelism in the Republican party, they’ve got a long wait ahead of them too.
Of these, the only real check is is the power of impeachment – amendments are necessarily interpreted (and interpreted away) by the judiciary, jurisdictional modifications are subject to constitutional review; removing inferior courts would only prolong the litigation leading to Supreme Court decisions; and appointment, advice and consent are at best guessing games (see, e.g., Governor Willam Brennan vs. Justice William Brennan).
And impeachment has never, ever been used to remove a judge based on the content of his decisions. It is a check only in the most academic of senses.
No, it isn’t actually. The quality of argument on that site is about on par with the tax protestor movement or the “missing 13th amendment” nutbars. And while I respect and admire both Douglas and Spooner, their arguments aren’t much better.
Seriously, they all boil down to the constitution not using the specific word “slave” or “slavery.” And they use some nifty sophsitry to make it sound like the constitutional provisions dealing with slavery don’t actually deal with slavery. But none of them withstand close scrutiny, especially if you’ve read any of the constitutional convention debates. Hell, I’m looking at an edition edited by Ralph Ketcham right now, and the discussion of August 21-22 was entirely devoted to the debates over slavery and the provisions in question – pretty much everyone at the convention understood those provisions to be inclusive of slavery.
The mental gymnastics it takes to believe the importation clause dealt with ordinary immigration, that the delivering-up clause refers only to indentured servants, and that the 3/5 clause deals with citizens-in-process (!) is staggering.
Good, we agree on something.
Yes. So what? The point is that at no point was it illegal or unconstitutional. Horse and buggies have long since fallen out of favor as a means of transit; that doesn’t mean horse and buggies are illegal or unconstitutional.
I also note that, based on the twisted reading of the constitution you endorse above, white slavery in the form of indentured servitude was actually constitutional, while black slavery was not – the precise opposite of your earlier contention.
You didn’t answer the question.
And I suspect they wouldn’t find such a law unconstitutional, partially because there’s no evidence that the would have, and partially because as rich property owners they didn’t have much to fear from the legislature.
Well, if they “accepted a compromise,” then they must have understood the Constitution as allowing slavery, right? They must not have believed the document forbade that practice, correct? Or are you arguing that they fought for broader wording, wording that encompassed even more than African slavery, in the hope that everyone would just forget about all the discussion and debate that specifically couched those provisions in terms of slavery?
I mean, I agree that the Constitution doesn’t mandate slavery; it just doesn’t forbid it, at least prior to the 13th amendment.
And you have concrete support for that view, right? I mean, besides your burning desire that it must be so?
And the spectre of the runaway judiciary arises again to send chills into the hearts of originalists everywhere. Of course the judiciary interprets Amendments to the Constitution as well as the original document, but pretending that the Amendment process does not act as a check on the judiciary is just silly. And why do you simply dismiss, with no argument, the entirety of Levine’s argument. You’ve been repeatedly asking for cites, arguments, etc., and when you get them, you simply wave your hands and pretend they are not there. Of course those things aren’t complete blocks on judicial power, they won’t necessarily stop a judge from doing as he/she will, but they are certainly checks on the power. But I’ll admit it is possible your Bogeyman judge could, in theory, exist. But my Bogeyman legislature certainly has existed, and does exist today. And I’ll continue to err on the side of protection of rights.
Why do you suppose that is? Could it be that a healthy chunk of the judiciary, legislaters, and public accept non-originalism? Could it be that, while certainly back by a boisterous crowd, originalism does not have the widespread, real-world support? Could it be that many people accept that the judiciary should act as an actual check on the legislative branch?
I didn’t convince you? Color me surprised. In fact, let’s say I agree with you that slavery was not unconstitutional in 1860? Your point is?
Actually, I don’t advocate that kind of reading of the question. Oddly enough, I think the “right” not to be a slave applies without reference to the skin color of the people involved. Kinda like the right to marry the person of your chosing should apply without reference to the skin color or the sexual orientation of the person involved.
There’s a good, but brief discussion, here. I’ll quote two parts:
The discussion we are having is not new. It is as old as the Constitution itself. The founders, Supreme Court justices, lawyers, and citizens have been engaging in this debate for hundreds of years. Pretending the original intent is the only way to interpret the Constitution, or that all of the framers thought that it should be interpreted narrowly and in light of their own intent, is just plain wrong.
. Give me examples of “gross injustices” and I’ll answer. The current anti-environmental legislation and executive branchs refusal to enforce are, in my opinion, gross injustices, but I can’t imagine any way they would be found unconstitutional.