Levine raises a variety of points, some of which are better than others. But I’d rather not guess as to which aspects of his argument you’re referring to. If you’d like to articulate an argument based on some aspect of that Levine presentation, I’ll be happy to respond, but I’m not going to do a line by line analysis of his words just because you figured out how to use the URL tag. I am, after all, debating you, not Levine.
(I also note that there is a world of difference between offering a cite for a factual proposition and offering a cite that simply adds to your list of arguments.)
That is simply not true. I read whatever is presented. But I don’t accept any random Googling as a proper cite: I read what you post and consider if it is actually germane to the question I posed, or if it is actually supportive of the assertion you are seeking to prove.
Consider many of the quotations you offer later in your post; all they really show is that Madison et al weren’t full-blown Bork-style originalists, which is fine – neither am I. But they are nonresponsive to the assertion I actually asked you to prove, namely that any founder considered the (pre-13th amendment) constitution “allow[ing] a court to find slavery unconstitutional.”
I think impeachment hasn’t been used to remove judges based on the substance of their opinions because that cure is quite a bit worse than the disease. No serious-minded strict constructionists wants to see the courts further politicized, and one can support restrained modes of interpretation without also wanting to see partisanship creep into the courts.
Are you seriously relying on argumentum ad populum?
The same point I raised several pages back when I brought up pre-13th amendment slavery: that “unconstitutional” is not a synonym for “unjust.”
But that’s not what you wrote earlier. Earlier in the thread, you said of the pre-13th amendment constitution, that, and I quote, “Slavery was unconstitutional prior to the 13th Amendment, unless of course you weren’t considered a full person, like blacks.”
Yet a few posts later you turn around and adopt Spooner’s argument that the deliver-up clause applied to (mostly white) indentured servants rather than black slaves. In short, you adopt the argument that slavery was constitutional for whites, but unconstitutional for blacks.
In short, you contradict yourself.
You really should get it through your head that pure Borkian originalism is but a subset of strict constructionism.
Do try to keep up. I’ve already quoted the relevant Levine statements en masse in an earlier post. I supplemented them by adding a couple not in that section, the need for majority opinions and the case and controversy. All these reasons were stated previously and simply dismissed by you. Shall I now bold them for you, or surround them with little naked pictures of Scalia to grab your attention?
At least you appear to be done nitpicking spelling, which is something. There is also a world of difference between my abilities and those of a federal court judge. Rather than sit there and paraphrase someone who said it better, I figured you could read and respond to someone with a bit more experience and talent than I.
Well, I suppose reading and comprehending are two different things. I’ve made my arguments regarding judicial discretion at least 3 times now, including Levine’s arguments to supplement my own. The sum and substance of your response has been “well, those aren’t real checks”. No reasoning, no argument, just a simple dismissal. Your getting very close to the Crossfire approach to debate.
The actual proposition was that : “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.” Please don’t become Shodanesque in your misstatement of my position. I provided quotes and a cite to an article detailing why some of the founders believed the Constitution was flexible. And you’ve… well, you’ve … ummm, could you give me a cite for the proposition that all of the founders agreed with your view of constitutional interpretation.
More on this later, if necessary. I don’t have my references here.
Of course impeachment is extreme, much like Amending the constitution. But don’t pretend that they aren’t checks on the judicial power.
Coming from the guy who wishes to uphold same sex discrimination on the basis of “the will of the majority”. Amusing.
Hey, I agree with you. And, non-originalist is not a synonym for activist either.
Slavery should have been unconstitutional for all people in the United States, regardless of race or color. Clearer now?
So you agree that a justice who applies non-originalism and finds same sex marriage to violate SDP and equal protection is not being activist? You agree that there are other, equally valid, methods of interpreting the Constitution, and calling for a jihad against those who disagree with your view is wrong? Cool. I guess we’re done, because it seemed to me your were questioning the appropriateness of the Goodridge decision.
You know, it’s funny, but I threw in some snark about your word usage ONCE, and when I did I still had the courtesy to respond to the substance of your point. You keep harping on that, and in a prior post, used it as a means to avoid responding to the point I had raised. That is really, truly lame on your part.
OK, fine. Please respond to all of the arguments set forth in favor of originalism in Bork’s “Tempting of America,” and all of the arguments set forth in favor of textualism in Scalia’s “A Matter of Interpretation,” both available at Amazon.com or at your local library. After all, they can more cogently frame their arguments than I, a mere commoner, and I thus see no need for me to paraphrase, and I figure you can certainly read and respond to those with a bit more experience than I. Can’t you?
You know, I did put in (admittedly brief) explanations as to why I thought those checks weren’t substantive. Ignoring that analysis ignores my argument, and it’s simply incorrect to state that I haven’t presented any kind of argumentation to support my point.
You provided a cite suggesting that the founders may not have been Borkian originalists – that is, they weren’t keen on using legislative history as a means of determining intent – but that is hardly the same thing as them saying the Constitution ought not be subject to some interpretational limits. You also specifically suggested the sort of flexibility you claim they embraced would find a pre-13th amendment juducial finding of unconstitutionality for the practice of slavery as a proper exercise of the judicial power. Your cites, however, do not support that point, and the weight of the evidence is against you based on…well, based on virtually everything written about the constitution at the time of the framing.
A check that no one ever even considers using is not a check at all.
I’m not sure why, except at the most superficial of levels. I’ve never said that the majority is particularly wise, or that their policies will necessarily be the best ones, or that they will always refrain from injustice. Self-governance sucks, except in comparison to the alternatives.
My argument for self-governance does not depend on the popularity of self-governance. It is not an argumentum ad populum. I believe it to be correct whether the masses agree or not.
No, but non-strict constructionist certainly is. I am not a Bork-style originalist, but I am a strict constructionist. That there are competing schools of thought within the strict construction umbrella does not, of itself, legitimize those modes of analysis outside that umbrella.
No, because you are now saying what slavery “should” have been. I’d like you to state, clearly and once and for all, whether slavery in any form was unconstitutional prior to the 13th amendment, and if so, why you think that.
I am, and I continue to do so, because under any mode of strict constructionist analysis – of which pure originalism is but one – the Goodridge decision is erroneous. That you cannot see this distinction does not change its validity.
Actually I was harping on the fact that you got some kind of jollies because I cited to an authority for argument rather than for a factual cite.
If the difference between a 5 paragraph quote and two hefty books escapes you, I fear there is really no point in going on with this.
If you consider my points duly responded to by your brief response, more power to you. I beg to differ, and I’ll hope perhaps someone else can come along and elaborate for you.
OK, Shodan. Oh wait, seeing as how I never said, or intimated that the “Constitution ought not be subject to some interpretational limits”, I figured that he was back to misstate my position and put in some rhetorical fluff. You can see how confused I get between you two.
I will admit I do not have a specific quote from any of the founders that slavery was unconstitutional.
And, oddly enough, I do not believe that the rights of the minority are subject to the whims of the majority. How nice for us.
OK. Next time, you can explain to Shodan why he is wrong.
From a legal realist perspective, of course it wasn’t unconstitutional. And, again, your point? And if it is that unjust and unconstitutional are two different things, I’ve already stated I agreed with you.
Don’t worry, I understand that you think Goodridge is erroneous. I have yet to meet a “strict constructionist” who believes otherwise. We can go on with the “your wrong” “No, your wrong”, but it’s pointless. My posts have been to point out the flaws in originalism, strict construtionism, and the benefits of a more flexible form of constitutional interpretation. I also pointed out that, merely because someone differs in their consitutional interpretation, it does not make them an “activist”. Your posts have been… well, I’m sure you’ll explain it to me.
On second thought, don’t. This thread really serves no more useful purpose, and I find it tedious and annoying.
Again, if you feel I left something out, simply tell me with a reasonable degree of specificity what I missed so I can direct my response appropriately. But I’m not going to guess; simply saying “look at this speech; you didn’t address all of his points” isn’t really terribly helpful.
(I also think it’s kind of lame to essentially rely on third parties to argue for you; I often refer people to Scalia or Bork’s work, but in the course of an argument I manage to cogently place their arguments into my own words. If nothing else, doing so demonstrates that I actually understand the argument I’m making.)
Or, perhaps, you could simply tell me why you think the brief responses were inadequate. I prefer not to make an argument lengthy solely for the sake of length – brevity is the soul of wit and all that – but if you think there is a substantive failing in my point that requires more text to remedy, explain why you think that and I’ll see if I can flesh things out a bit.
Well, fine; perhaps I could have been clearer, stating that just because some founders may have not been keen on using legislative history as an interpretive device does not mean they would have favored interpretive schemes outside of the strict construction umbrella. Is that better? And will you now return to the substance of the matter, rather than substituting insult for argument?
Does Shodan not recognize that there are competing schools of strict constructionist thought – originalists and textualists and hybrids of the two? I wouldn’t know, and since Shodan is not party to this discussion, I’m not sure why his knowledge of competing legal theories is particularly relevant.
But I do think that perhaps you aren’t aware of the distinction, seeing how you continue to use “orignalism” and “strict constructionism” as though they were synonymous. They aren’t. The former is a subset of the latter. Indeed, the highest-ranking strict constructionist on the bench today, Antonin Scalia, is sharply critical of Bork-style originalism as a means of interpretation, preferring instead a textualist appraoch.
Is that your perspective? Is that your belief, or are you just describing what another school of thought believes?
The flaws all seem to be comprised of “it fails to provides result I favor politically” and the benefits all seem to be comprised of “it succeeds in providing results I favor politically.”
Well, actually, “activism” is properly defined as the judiciary substituting its judgment for that of the legislature (or framers). In which case, using a non-strict constructionist approach is by definition activist.
Originalists and textualists and hybrids of the two are all dedicated to understanding what the people who wrote a given law were up to – the search for intent. They each have different appraoches to finding intent, and different theories as to why those approaches are correct. But if you give up on that as a goal – if you say that finding the legislature’s intended interpretation isn’t necessary or even important – then you’re advocating activism.
Remember when I said this was getting tedious and boring. It’s getting worse, but luckily Dewey comes along and gets my dander up just enough to keep me interested.
Sorry to put you at such a disadvantage that you may have to actually read my posts. Here, I’ll quote them for you, to make it easier, because I know how loathe you are to do anything but fling half-assed insults.
And here is your response:
Again, it’s your argument. If you think you’ve countered my points, that’s your perogative. If you’re too lazy to decide for yourself, fine, but I ain’t holding your hand.
God, you’re an insufferable prick. In addition to being lazy, you’re condescending, arrogant, and insulting. Hope that works well for you.
Look, I’m no longer in this thread for you. There is absolutely no chance of me changing your mind. And this thread has devolved into simple recaps and insulting. As such, I am not going to do your work for you.
My earlier quotes and cites go not just to legislative history but also the overreliance on intent, but if someone other than you wishes to discuss this issue further, I’d suggest a new thread.
The point, and I’m sorry if you couldn’t follow (hey look! a veiled insult. Wonder where I got that from.) is that Shodan appears to be a Borkian originalist. Since you disagree with his position, next time you can explain to him why he is wrong.
Great. Good for Scalia. Your point, besides more condenscening?
Fortunately, I have the ability to understand more than one perspective.
[quote=Dewey]
The flaws all seem to be comprised of “it fails to provides result I favor politically” and the benefits all seem to be comprised of “it succeeds in providing results I favor politically.”[/quoete]While one of the arguments was surely that allowing injustice in the name of process is poor thinking, it was not the sole answer. But thanks again for the rephrasing.
Well, I can see why you may make a good lawyer. Anyone who disagrees with me is ______. You can go ahead and substitute whichever word of the day. Activism works well. ALthough I do have a better understanding of your personal use of the term, and have adjusted by thinking thereto.
And, once again, the intent of the founders, while one part of the equation, should not be the controlling determination in constitutional jurisprudence. Wow, in two sentences we’ve summed up the argument. Great. Now I’m done. I have nothing but annoyance to gain from continuing. Feel free to declare your victory and go on your merry way, once again secure in the knowledge that strict constructionism remains safe.
What are the factors in the equation, and what weight - roughly - do they carry?
Here’s my objection to moving away from applying the law as it was understood at the time it was passed: other methods sabotage the notion of self-governance. We elect legislators, and they give effect to our will. WE ARE SOVEREIGN, collectively. That’s the system I believe is wisest – and, not incidentally, it’s the system I think most of us believe we’re supposed to be living in.
When you allow that the idea of a Living Constitution will permit us to conclude that an interpretation never sanctioned by the guys that write the law, and (obviously) never sanctioned by a subsequent group of elected guys, then the result is that we have a source of substantive law - a power of governance - from people that are not elected to their posts. That’s not the end of the world – after all, they were appointed and confirmed BY the people that were elected. But the elcted folks can easily be fired if they make law we don’t like. The unelected folks cannot easily be fired by the people.
In the end, this is what I object to. It’s why I say that a textualist approach is wisest - because it sustains our system of self-governance.
The text, the structure, the meaning, the principles, the intentions, precedent, common law, and pragmatic effect are all factors in the equation, and many more. Deciding exactly what is the establishment of religion, what is reasonable for searchs and seizures, and what is due process requires much more than just looking at what the people who first put those words into the constitution meant.
I would agree more with that proposition regarding statutory interpretation, but not constitutional interpretation. The Constitution needs to, and does, deal with generalities, needs to be flexible, and needs to be applied to more situations than ever dreamed of by the founders.
Which is why the homosexuality is currently such a good example of these ideals. It is next in the line that started with race and included national origin, sex, etc, where the majority has insisted on denying rights to specific groups. The Constitution should protect those rights and those minorities.
And, while I agree self-governance by majority rule is a good thing (thank you Martha Stewart), it is not the only concern. The judiciary is responsible to act as a check and balance on the more democratic, more politicially motivated, branchs of the government. The judiciary is concerned not just with what the majority of people want, or have enacted, but also with the protection of the rights of the minority. That’s one of the reasons I get so frustrated with people who seem to think our system of government is solely majority rule, whatever the majority has said, rules. That’s not our system of government, nor should it be. Granted, the will of the majority will usually triumph anyway (i/e Amending the Constitution after a judicial ruling), but it needs to be checked. Believe it or not, you can have it both ways, you can have self-governance without sacrificing the protection of the rights of the minorities.
I disagree that elected folks can easily be fired. Have you seen incumbant retention rates? But putting that aside, the goal of the Constitution, even the goal of government itself, is not to be majoritarian, it is to do what is right and good for its citizens. I wholeheartedly agree that the best way to reach that goal is representative democracy, but even then, majoritiarism needs to be checked. Hence, the judicial branch. When you put the process, majoritarianism, before the result, justice and good, there can be trouble. And before your, or Dewey’s fingers start furiously typing about elitism, or the subjectivity of “justice”, I’ll only say that all of this takes place within the constraints of the Constitution.
I like to liken (ugh, I speak goodly) it to the issue of the Bill of Rights. Without the Bill of Rights, the Constitution was a fine blueprint on how to run a government. Sure it had flaws, but it was, and remains, the best system of government. But it didn’t end there. The founders, even the people, wanted to ensure their protection from the government. Hence the Bill of Rights. The concept that, regardless of the actions of the majority, there would be some protection for the citizens. Same idea.
And someday, if you ever buy me some beers, maybe I’ll even admit to the even more pragmatic reasons for rejecting “strict constructionism”. But that’ll have to wait.
But self-governance can include a judiciary that is not bound by strict constructionism. And the majoritiarism v. elitism debate has yet to be resolved in 200+ years. Which, actually, works in our favor.
I’m not sure where you get that I’ve insulted you at any point in this discussion. At the very least, I’m not the one calling others an “insufferable prick,” “lazy,” or any other such things.
OK, so let’s look at what you’ve brought up in a bit more detail:
Power to appoint. Hardly a meaningful check, as a mere glance at the entirety of Supreme Court history will show. The obvious example is Earl Warren (I mistakenly said Brennan before), who, much to Eisenhower’s chagrin, was not the moderate conservative on the bench that he was as governor of California.
Power to impeach. Again, history shows not a meaningful check. It’s the “nuclear option” of judicial control, and it’s never been used against justices for jurisprudential philosophy reasons. A check that no one ever plans on using is not a check at all. The veto, for example, is an effective check on Congress because Presidents actually use it from time to time. Ditto veto overrides. Impeachment is simply a non-starter.
Power to set jurisdiction. Plenty of scholars have argued that if Congress sought to remove constitutional issues from the court’s jurisdiction entirely, that act would itself be unconstitutional. Since the courts interpret these things, they end up in the position of self-limiting their own power. I’ll lay odds on which way that decision would go.
Power to establish inferior courts. What does this have to do with anything? It just means there are potentially more judges out there.
Lack of enforcement power. See “Impeachment.” Unless you want another Andy Jackson moment in the White House.
Interior checks. Such as…what? The appeals process? Most of these issues arise at the Supreme Court level, either by the high court itself ruling or by an appellate court applying precedents… Who checks them?
“Vast majority of judges have shown their own judicial restraint.” I’m not sure how you would even measure this, but it ignores the problem, namely the judges that don’t exercise judicial restraint. Unless by “their own” you mean their own personal version of judical restraint, which…is meaningless, really. I’m sure even the most wild-eyed living constitutionalist is restrained in his own mind’s eye.
Case and Controversy. The “case and contoversy” requirement is hardly a barrier, as anyone familiar with the facts involved in bringing Griswold before the court can attest. People looking to change the world by judicial fiat do not have to look far to find plaintiffs willing to sign on to a lawsuit.
The Record. This is a constraint how, exactly? I mean, sure, you probably would have a hard time making, say, a wine importation case about gay marriage, but as noted in #1 above, there is no problem finding plaintiffs related to the social justice issue du jour.
The need for majority. Jeepers, it’s an oligarchy, not a dictatorship. That’s just swell.
The need for public confidence. When I was practicing law in NYC, one of the partnes I worked for confidently believed the court in Bush v. Gore would go the other way based solely on the need to maintain public confidence in the judicial branch. Laugh was on him, I guess.
Reliance on convention and custom. Another word for “precedent.” If this is such huge check, explain Lawrence v. Texas.
A duty to partake in “objective rigorous analysis”, objectivity, and the need for a principled basis for decisions. Uh, sure. This duty is imposed how, exactly? And shall I post the doublespeaky gobbledygook in some of the high court’s more egregious opinions to illustrate how un-rigorous their analysis needs to be?
I believe this is simply a reiteration of the “case and controversy” and “record” arguments. See above.
Reiteration of “duty to partake in rigorous analysis.” See above.
Are you seriously arguing that a judge’s deep-felt feelings, which will necessarily vary from judge to judge, are a meaningful check?
Reiterates “reliance on convention and custom” and “duty for rigorous analysis.” See above.
Meaningless twaddle. Again, if decisions have to be in harmony with “the legal landscape,” explain Lawrence.
Shorter version: “judges have to read cases and understand the facts of the case before them.” And this is a check how exactly? As for considering the “practical consequences,” well, that’s part of the problem, isn’t it? Judges deciding things based on their view of what the right practical consequence is, rather than on what the law says?
What a bunch of silliness. Yes, judges have to write opinions. Indeed, it’s in reading their opinions that we determine the validity of their reasoning. But the mere fact that they have to write opinions doesn’t mean they’ll “clearly articulate a rationale.”
Consider Justice Souter’s infamous “mystery passage” from Casey: “At the heart of liberty is the right to define one‘s own concept of existence, of the universe, and of the mystery of human life.” I’ve read that thing more times than I care to count, and I still don’t know what the fuck Dave is talking about. Rigorous reasoning? A clearly articulated rationale? Spare me.
Brief, but it got the gist of the matter quite well, especially given the repetition in the matters described above.
I’m not sure why you feel the need to be so abrasive. I simply asked that you point out those things you wished me to address. That isn’t being lazy, it’s being efficient, ensuring I don’t waste my time or yours by arguing points you don’t feel like pressing.
Riiiiiiiight. I’m the insulting one. :rolleyes:
I never asked you to “do my work for me.” I’m perfectly capable of writing my own responses. I simply asked that you clarify what you wanted addressed. I’m fairly amazed that a simple request to extend a courtesy is met with accusations of laziness.
I’m also quite curious to know why you persist in saying I’ve insulted you. I really don’t think I have. Admittedly, I have not reviewed the nine pages of this thread, but I don’t remember saying anything to you that could plausibly be construed as an insult. I’ve certainly never called you lazy or an insufferable prick or anything like that.
Well, having read your earlier quotes and cites (I take it you are referring to the series of quotes from Madison, et al), I think that is simply far too broad a reading to be even remotely plausible, though you are welcome to explain how you reach that conclusion.
Well, again, while I’d be happy to discuss the finer points of various modes of strict constructionism with Shodan, I’m really not sure why you suggesting that is germane to our discussion.
Why is that condencending? Were you aware of the various schools of strict constructionist thought? Even if you were, why is it condencending of me to point it out? Certainly your posts in this thread seem to indicate a belief that Borkian originalism is the only mode of strict constructionist analysis, as you repeatedly frame your argument in those terms. Why is condencending to point out facts about which you may be unaware? Why not respond with either “oh, I didn’t realize that” or “thanks, but I already knew that, I’m focusing solely on orlginalism because _____”?
I never said you didn’t. I simply asked what your perspective was.
My impression is that the other justifications are, essentially, variations on the same theme. But I welcome your analysis if you’d like to provide other justifications.
If you wish to offer an alternative definition of “activism”, go right ahead. I do, however, think the one that I posted is the one most commonly used (well, among serious-minded people anyway; certainly politicians and the like of both political stripes use the term to mean “I don’t like the decision.” See, e.g., Terri Schiavo.).
Technically, what you’ve posted isn’t an argument, it’s a premise to be proven by supporting argument. And technically, what I posted wasn’t an argument but a description of the overarching goal of the various strains of strict constructionism in the course of defining the term “activism.” So, no, we haven’t summed up the argument in two sentences, I’m afraid.
I’m amazed to read this and at the same time be told that I’m the condencending one.
And yet, Dred Scott was the first case of note to rely on notions of “substantive” due process, Public Enemy No. 1 of strict constructionists everywhere. Regardless of whatever noises Taney made in getting there, at the end of the day he applied a decidedly activist mode of thinking in reaching his final concusion.
You should really choose your cases more carefully.