Rights? What's a Right?

[Dewey_Cheatem_Undhow]

*Originally posted by minty green *
Mocking indignation? No sir. I am pointing out the weaknesses in your argument, which is always easy to do when one’s opponent advocates an inflexible, unyielding doctrine.

The doctrine I espouse is neither inflexible nor unyielding. Democracy itself is remarkably flexible. Indeed, it is much easier to undo a bad legislative decision than it is to undo a bad Supreme Court decision. **

To wit: I know perfectly well that “due process” means different things to different people; **

But no serious person says “what the fuck does that mean,” and shrugs their shoulders in blithe acceptance. Serious proponents of substantive due process at least attempt to construct an argument as to why it should mean more than fair procedures, and try to chart out the limitations of that theory.

You, on the other hand, just say “whatever, dude!” and embrace the power of the judiciary to de facto amend the constitution without any attempt to ascribe a principled basis for that decision. It is a purely ad hoc philosophy. Essentially, any judicial use of SPD where minty approves of the outcome is legitimate, and any other use is illegitimate.

Seriously. Is there any policy choice that cannot be undone under the substantive due process rationale? Is there any right that cannot be invented out of convenience to defeat a particular disliked bit of legislation? Where does it all end?**

I know perfectly well that representative democracy is not the only means to measure “consent of the governed”;**

Thus spoke the tyrant.**

and I know perfectly well that when you speak of allowing people to chart their own course, you are speaking of the power of legislative majorities to send consenting adults to jail for nothing more than bumping uglies.**

I have no great love for the sodomy laws. They are wrong and immoral. But laws are not invalidated for being wrong or immoral; they are invalidated for being unconstitutional, and I can see nothing in the constitution that forbids those laws. The principle I am advocating extends well beyond one particular transient issue.

[Dewey_Cheatem_Undhow]

*Originally posted by Polycarp *
**In short, a judge ruling on constitutionality is no more and no less representative of the will of the people than is a given congressman or the president. **

You’re kidding, right? Judges don’t have to stand before the people every two to six years.

The appointment of judges to a life tenure is, by design, decidedly unrepresentative. Which is well and good as far as it goes: one wants, for example, the court to be insulated from public outcry when, say, they throw out evidence in a criminal trial based on an unconstitutional search. That insularity is a good thing when it comes to the application of constitutional provisions upon which the people have already decided. But the virtue of insularity becomes a vice when it comes to adding new provisions to the constitution.

[december]

*Originally posted by minty green *
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

minty, weren’t you the lawyer who taught me that the Preamble couldn’t be used to justify decisions?

Anyhow, that’s a feeble point. Obviously the Constution is intended to make things better. It would be a strange Preamble that said its purpose was create a more flawed union, to reduce justice, and to leave us defenceless.

But, the point is, the Constitution doesn’t say the judges or any other public servants can exceed their powers in order to make the country better. In fact, its entire Separation of Powers structure argues for the exact opposite.

KellyM, you don’t explain why it’s bad for a judge to be a strict constuctionist, but it’s essential for all other public servants to strictly follow the law. E.g., the LA police may have believed it would help insure domestic tranquility to beat the shit out of violent criminal Rodney King. But, you and Ithink they were dead wrong to act on that belief.

Do you think judges have more wisdom than other public servants? Are they uniquely qualified to exceed their powers and promote the public good as they see fit? Or, is it OK for any government worker to do so, as long as you agree with the results?

In practice, there are checks on everyone in goverment except for the Supreme Court. If the Supremes decide to take the law into their own hands, there’s nothing we can do about it. So, we might as well relax and enjoy it.

[Dewey_Cheatem_Undhow]

*Originally posted by KellyM *
The problem arises when you put the rules and formulas ahead of the purpose of having the rules and formulas, which is what I think strict constructionalists do.

Then you haven’t been paying attention. In this very thread, I’ve discussed the purpose behind the strict constructionist philosophy. To call strict constructionism mindless adherence to arbitrary rules is to miss the point entirely.

[Dogface]

If rights do not exist absent a legal guarantee of them, then there is no point and no need to ever oppose any government that is denying any “right”, since that “right” does not exist if a government denies it. Thus, it cannot be legitimately demanded nor defended, since it does not exist.

[minty_green]

*Originally posted by Dewey Cheatem Undhow *
The doctrine I espouse is neither inflexible nor unyielding. Democracy itself is remarkably flexible.

Quite true. But that hardly excuses slavish devotion to the end product of democracy when the result is a great big middle finger to basic human rights. Representative democracy is not, by itself, the cure for all that ails society, as the founding fathers most certainly recognized. No slavish devotees of the legislature were those guys–hell, they set up an absolutely brilliant system where only 1/6th of the power of the federal government was in the hands of democratically elected representatives.

But no serious person says “what the fuck does that mean,” and shrugs their shoulders in blithe acceptance.

Sure they did. “Due process” is anything but self-defining, a inkblot test of simple fairness and good government–yet they enthusiastically ratified that sucker, wrote it right into the Constitution.

Serious proponents of substantive due process at least attempt to construct an argument as to why it should mean more than fair procedures, and try to chart out the limitations of that theory.

And in fact, I’ve done so in the past, in multi-page threads you’ve participated in yourself. It didn’t seem terribly germane to the subject of this thread, which is where we get all these notions in the first place.

You, on the other hand, just say “whatever, dude!” and embrace the power of the judiciary to de facto amend the constitution without any attempt to ascribe a principled basis for that decision. It is a purely ad hoc philosophy. Essentially, any judicial use of SPD where minty approves of the outcome is legitimate, and any other use is illegitimate.

Whereas you don’t give a damn what the outcome of a case is, as long as the court slavishly dedicates itself to your preferred, narrow reading of the Constitution? Are there no ends in your world, only means? Me, I’m fairly serious about both, and recognize that you can’t have one without the other.

Seriously. Is there any policy choice that cannot be undone under the substantive due process rationale?

Forget the SDP label; the real question is whether the Court, using whatever doctrine it wants, has the power to invalidate any policy choice it wants. The answer to that, of course, is yes–see Marbury.

Now, having established that the Court has that power, you have to ask whether, in fact, “any policy choice” is likely to be “undone” by the Court. As a matter of social, political, and legal reality–as opposed to Scalia-style wailing that the sky is falling–the answer is clearly no.

But laws are not invalidated for being wrong or immoral; they are invalidated for being unconstitutional, and I can see nothing in the constitution that forbids those laws.

I can: Due Process and Equal Protection. YMMV.

[minty_green]

*Originally posted by december *
minty, weren’t you the lawyer who taught me that the Preamble couldn’t be used to justify decisions?

No. In fact, I’ve argued several times that the Constitution should be interpreted consistently with the Preamble. Perhaps you are thinking of the Declaration of Independence, which has no legal force or effect?

But, the point is, the Constitution doesn’t say the judges or any other public servants can exceed their powers in order to make the country better.

So are you in fact claiming that the Supremes “exceeded their powers” with the sodomy decision? Or are you just arguing generally?

[december]

*Originally posted by minty green *
**So are you in fact claiming that the Supremes “exceeded their powers” with the sodomy decision? Or are you just arguing generally? **

The latter. The point is to explore what appears to be inconsistent thinking. Many Americans strongly support the SC going beyond the written laws and Consitution, but strongly oppose others in government who do the same thing. Here are some theories:[ol][]The SC’s legally questionable decisions have been popular. Most of us care less about usurpation of power than about results.[]Judges are presumed to have greater wisdom than others in government – especially the SC.We’re wowed by the robes. People who dress like that can be trusted to make good policy. But, we wouldn’t allow policy to be made by people who dress like bus drivers or garbage collectors.[/ol]

[KellyM]

Dewey, as you are explaining strict constructionalism it seems very much that you believe that strict constructionalism holds that the process is more important than the result. And it is that belief that I find morally repugnant. It describes a philosophy which AD&D players will recognize as “lawful evil”.

The argument that the Constitution was “democratically mandated” as a “contract for future generations” is hard to sustain. Less than 3% of those living in the United States at the time were permitted to vote on the question of whether to ratify the Constitution (voting in most States then being limited to white male landowners). A miniscule fraction of those living today in the United States are descendants of those voters. A substantial fraction – perhaps a majority – of our current citizenry is descended from people who never voted on the Constitution, nor formally assented to it through naturalization (having being born to noncitizen residents, many of whom were made residents without their consent). It is tenuous at best to argue that there is a legitimate democratic mandate from the current citizenry for the Constitution that derives from its original “democratic” adoption.

Nor is the Constitution a contract. (Some people do like to consider it to be a contract between the several states and the United States, but that theory died on April 9th, 1865.) It is a statement of principles, some more detailed than others but all intended to guide our lawmakers, both elected and unelected, as they make the law of our nation. Strict constructionalism ignores the general and focuses too sharply on the specific. It is the ignorance of the general terms, and the general tone, and the entire purpose of having a Constitution, that damns strict constructionalism.

[Qwertyasdfg]

I almost posted a similar thread a while ago, but I lost my nerve for some reason.

In any case, here’s my opinion. A “right” is whatever the constitution says it is. In a state of nature everyone has the right to do everything, so we create governments to sort out which rights we should keep when we enter into society. While I agree that life, liberty and property should be rights, they are not so by default. Thus, whatever the Constitution says should be considered a right. For example (and this is just an example, lets please not hijack this thread), although I do not believe that the right to bear arms SHOULD be considered a right, I accept it as being one.

Now since the judicial system is an extension of our Federal and state constitutions, I would say that the findings of their Supreme Courts are also rights (such as privacy.) Furthermore, it just seems smart and practical to give the judicial system this power in order to fine tune our laws/rights/society.

[Scott_Dickerson]

POLYCARP:

How are we doing so far in ameliorating the “sad state of affairs” mentioned in your OP? IMHO, shitastically: people are still talking past one another, though with more pungency to their invective, and less wit to their humor. If anyone has discovered even semantical common ground ('pon which mutual understanding might grow), it slipped past me.

Which is in no way a criticism of you and your thread, just a sigh at the unwillingness of deeply committed ideologues to seriously entertain the notion that those who disagree are not simply willfully purblind fools, but may well have a defeasible point worth…defeasing.

And whatever happened to the attempt to define “rights,” as opposed to focusing intently and all-but-exclusively on what seems to be the tired and unwinnable “debate” (I call it that by courtesy) on the appropriate degree of constricture to apply to Constitutional construal?

But if you want to hang in there, Poly, I’ll hang with ya.

[minty_green]

If you think we’ve strayed too far off topic, Scott, you are welcome to post anything you think would get things back on track. Personally, I thought we were having a perfectly good conversation on how to determine what’s a fundamental right and what isn’t, but I certainly won’t prevent you from discussing things from a moral or philosophical p.o.v.

[Whack-a-Mole]

*Originally posted by december *
KellyM, you don’t explain why it’s bad for a judge to be a strict constuctionist, but it’s essential for all other public servants to strictly follow the law. E.g., the LA police may have believed it would help insure domestic tranquility to beat the shit out of violent criminal Rodney King. But, you and Ithink they were dead wrong to act on that belief.

Do you think judges have more wisdom than other public servants? Are they uniquely qualified to exceed their powers and promote the public good as they see fit? Or, is it OK for any government worker to do so, as long as you agree with the results?

In practice, there are checks on everyone in goverment except for the Supreme Court. If the Supremes decide to take the law into their own hands, there’s nothing we can do about it. So, we might as well relax and enjoy it.

Indeed police and other government servants must apply the law as written. However, it is the role of judges to interpret the law. Sometimes a law is pretty clear but often they are vague, or at least don’t speak 100% to the issue in question, and we rely upon the judiciary to predict what the law is trying to accomplish. You see this sort of thing all the time and is often the path a case takes to the Supreme Court…one judge interprets one way…another judge sees it differently and so on. Eventually the process needs to stop and the final word comes at the SCOTUS. Are judges more wise than other public servants? I would hope so but there is no guarantee of that. Regardless it is the job we set them to so they most certainly are not exceeding their powers.

Originally posted by Dewey Cheatem Undhow:

…the power of the judiciary to de facto amend the constitution without any attempt to ascribe a principled basis for that decision.
[/quote]

You’re kidding right? The Supreme Court most definitely ascribes a principled basis to their decisions. Just read their decisions to see this. They aren’t rolling dice in a back room to settle on a decision. You persoanlly may not agree with their reasoning but that makes it no less principled on their part.

Democracy itself is remarkably flexible. Indeed, it is much easier to undo a bad legislative decision than it is to undo a bad Supreme Court decision.

You seem dedicated to the notion that democracy cures all and should reign supreme. On papaer the theory looks nice but in reality it doesn’t work as smoothly as we might like. Special interest groups hold inordinate power, minorities are woefully underepresented (partly their own fault for not voting but plenty of ways [e.g. redistricting] that the incumbent powers edge them to the side), money, corruption, etc…

Further, there is such a thing as a ‘tyranny of the majority’ that seems to be one of the things our Founding Fathers were trying to avoid in the US. For instance, homosexuals will never be a majority but it seems by your way of thinking discrimination against them is perfectly acceptable as long as the majority expressed its will to do so and it is patently wrong for any court to undo the will of the people…in any circumstances.

Sometimes we need to be saved form ourselves and the Supreme Court is ideally placed to do so. A Supreme Court decision should be harder to undo than legislation. If the Supreme Court is way off base it is possible to overturn their decision via a constitutional amendment and that amendment should be harder than ordinary laws to pass. I should have a right, even if it isn’t ennumerated, till someone explicitly takes it away and if they take it away then the reasons should be good enough to rise to the level of getting a constitutional amendment passed.

[Dogface]

*Originally posted by Qwertyasdfg *
**A “right” is whatever the constitution says it is. **

In that case, there has never been any need, whatsoever, to amend the Constitution in regards to rights. If a government invents rights merely by fiat, then a government may destroy rights merely by fiat. Therefore, if one is under a government that does not extend a right, one cannot legitimately request it, since it is the government that creates rights.

[Dewey_Cheatem_Undhow]

*Originally posted by minty green *
Quite true. But that hardly excuses slavish devotion to the end product of democracy when the result is a great big middle finger to basic human rights. Representative democracy is not, by itself, the cure for all that ails society, as the founding fathers most certainly recognized. No slavish devotees of the legislature were those guys–hell, they set up an absolutely brilliant system where only 1/6th of the power of the federal government was in the hands of democratically elected representatives.

It is a brilliant system. It was also put into motion by democratic processes. It is because of that fact that the system is legitimate.**

Sure they did. “Due process” is anything but self-defining, a inkblot test of simple fairness and good government–yet they enthusiastically ratified that sucker, wrote it right into the Constitution.**

And there is precious little evidence that the founders saw “due process” as an “inkblot test.” Indeed, out of its isolated use in the Dred Scott decision (itself sixty plus years after the founding), it was not put into practice until the turn of the century era of Lochner. Odd that a phrase that was so obviously an “ink blot” to the founders would not be put to significant use for well over a century. **

And in fact, I’ve done so in the past, in multi-page threads you’ve participated in yourself. It didn’t seem terribly germane to the subject of this thread, which is where we get all these notions in the first place. **

In all of those threads, I have yet to hear you suggest any kind of limitation on the use of substantive due process. The closest you’ve come is to say “the court has only used the doctrine in certain limited areas,” which is not the same as describing at what point the court’s use of the doctrine is illegitimate. **

Whereas you don’t give a damn what the outcome of a case is, as long as the court slavishly dedicates itself to your preferred, narrow reading of the Constitution? Are there no ends in your world, only means? Me, I’m fairly serious about both, and recognize that you can’t have one without the other.**

I am very serious about ends. I just do not think they justify the means.

The sodomy case is a clear example: I think such laws should be eradicated from the books via the legislative process. I give a damn about the end. I want to see things change. But they must change in the right way, and not “by any means necessary.” **

Forget the SDP label; the real question is whether the Court, using whatever doctrine it wants, has the power to invalidate any policy choice it wants. The answer to that, of course, is yes–see Marbury. **

And here, writ large, is the minty’s theory of the court. At the end of the day, there is nothing but power. Minty cares not how nonsensical the court’s reasoning, nor how much power they aggregate for themselves, so long as he approves of the end result of a particular case. That is a remarkably shortsighted view. **

Now, having established that the Court has that power, you have to ask whether, in fact, “any policy choice” is likely to be “undone” by the Court. As a matter of social, political, and legal reality–as opposed to Scalia-style wailing that the sky is falling–the answer is clearly no. **

Thus is power handed away – bit by bit, rather in one fell swoop. A theory of jurisprudence that depends on nothing more than the particular political proclivities of the justices is a bad one.

[Dewey_Cheatem_Undhow]

*Originally posted by KellyM *
Dewey, as you are explaining strict constructionalism it seems very much that you believe that strict constructionalism holds that the process is more important than the result. And it is that belief that I find morally repugnant. It describes a philosophy which AD&D players will recognize as “lawful evil”.

Actually, I’d term myself “lawful good” and you and minty “chaotic good.” I care deeply about results, but I also care about the means used to reach those results. You guys, on the other hand, don’t seem to care how particular policy choices are enacted, so long as those choices are “good” in a metaphysical sense.

But then, I’m not a D&D player, I might be wrong.**

The argument that the Constitution was “democratically mandated” as a “contract for future generations” is hard to sustain. Less than 3% of those living in the United States at the time were permitted to vote on the question of whether to ratify the Constitution (voting in most States then being limited to white male landowners). A miniscule fraction of those living today in the United States are descendants of those voters. A substantial fraction – perhaps a majority – of our current citizenry is descended from people who never voted on the Constitution, nor formally assented to it through naturalization (having being born to noncitizen residents, many of whom were made residents without their consent). It is tenuous at best to argue that there is a legitimate democratic mandate from the current citizenry for the Constitution that derives from its original “democratic” adoption. **

By that impossible standard, there has never been a democratic mandate for any piece of legislation adopted in the history of the universe. While I think we have been greatly improved by extending the franchise to more and more people, the mere fact that the franchise was historically limited does not undo the legitimacy of those prior acts. We do not live in a world of metaphysical perfection. **

Nor is the Constitution a contract. **

I don’t think I claimed the Constitution was literally a contract (or at least, if I did, I didn’t mean to). I drew an analogy to contracts to illustrate a point.

I think I’ve addressed the rest of your post earlier in this thread.

[Dewey_Cheatem_Undhow]

*Originally posted by Whack-a-Mole *
You’re kidding right? The Supreme Court most definitely ascribes a principled basis to their decisions. Just read their decisions to see this. They aren’t rolling dice in a back room to settle on a decision. You persoanlly may not agree with their reasoning but that makes it no less principled on their part.

You aren’t paying attention. The basis used by the Supreme Court – “substantive” due process – is quite literally a license to write new rights into the constitution. It is unprincipled because it is unlimited. It is a theory which allows the court as much power as they decide to exercise at any given time. **

You seem dedicated to the notion that democracy cures all and should reign supreme. On papaer the theory looks nice but in reality it doesn’t work as smoothly as we might like. Special interest groups hold inordinate power, minorities are woefully underepresented (partly their own fault for not voting but plenty of ways [e.g. redistricting] that the incumbent powers edge them to the side), money, corruption, etc… **

I should note here that I believe firmly in the rigorous enforcement of all the provisions of the constitution. If a law abridges free speech, it should be struck down. If a warrantless search lacks probable cause, it should be invalidated. And so on and so forth. I do not decry – indeed, I applaud – the court’s enforcing the actual text of the constitution.

The constitution rightly places limits on the acts of the legislature. But the only reason those limits are valid is because they were arrived at via democratic processess. Free speech, for example, is protected because “We the People” decided it should be protected. **

Further, there is such a thing as a ‘tyranny of the majority’ that seems to be one of the things our Founding Fathers were trying to avoid in the US. For instance, homosexuals will never be a majority but it seems by your way of thinking discrimination against them is perfectly acceptable as long as the majority expressed its will to do so and it is patently wrong for any court to undo the will of the people…in any circumstances. **

This is not true. There is an equal protection clause, and it deserves to be enforced. Which is why I’m somewhat sympathetic to O’Connor’s opinion in this case (although it is not without its problems).

[Dewey_Cheatem_Undhow]

And a general question to all assembled:

Suppose hypothetically that the people of these United States decided that the first amendment was a really dumb idea. 2/3 of both houses of Congress ratify an amendment repealing the first amendment, and 3/4 of the states ratify. Ergo, the first amendment is no longer part of the federal constitution. Further assume your state of residence has similarly amended its own constitution if it contains free speech protections.

Question: do you still have a right to free speech? Why or why not?

(FYI: Barring me finding an internet cafe or something, I’m going to be away from the boards for about a week effective tomorrow morning due to holiday travel, so other than any replies I can squeeze in tonight don’t look for reply posts before that time.)

[Whack-a-Mole]

*Originally posted by Dewey Cheatem Undhow *
You aren’t paying attention. The basis used by the Supreme Court – “substantive” due process – is quite literally a license to write new rights into the constitution. It is unprincipled because it is unlimited. It is a theory which allows the court as much power as they decide to exercise at any given time.

This suggests that the Supreme Court is arbitrary in its decisions. My point was that they are not. The Supreme Court’s decisions are absolutely founded on principle. It is fine to disagree with the court’s reasoning and interpretation but the court is not taking the stance of, “Cuz we said so.”

I should note here that I believe firmly in the rigorous enforcement of all the provisions of the constitution. If a law abridges free speech, it should be struck down. If a warrantless search lacks probable cause, it should be invalidated. And so on and so forth. I do not decry – indeed, I applaud – the court’s enforcing the actual text of the constitution.

The US Constitution absolutely requires interpretation. Free speech? The Supreme Court has limited it (the famous, "You can’t shout ‘Fire’ in a crowded theater). Right to bear arms? You aren’t allowed to own a howitzer or missile launcher. Warrantless search? Sadly this has been weakened by the court as well (e.g. roadblock searches). Clearly the court not only extracts rights out of the Constitution where they aren’t explicitly stated…they restrict rights also.

Interpretation is absolutely necessary and someone needs to do it. Our system has set the courts to decide and it can happen from traffic court on up. Eventually there has to be a stopping point and we’ve set the Supreme Court to be the final word. Perfect? Maybe not. Potential for abuse of power? Yes with a big ‘BUT’ thrown in.

Your fears of the SCOTUS doing as they please with no regard for anyone or anything is mitigated in that the Constitution can be amended thus undoing their decisions. It is mitigated by the fact that the SCOTUS can and does overturn its own decisions (as evidenced in Lawrence v. Texas) and if push really comes to shove the justices can be impeached and removed.

If you have a better alternative to the US Supreme Court I’m all ears.

[Dewey_Cheatem_Undhow]

*Originally posted by Whack-a-Mole *
This suggests that the Supreme Court is arbitrary in its decisions. My point was that they are not. The Supreme Court’s decisions are absolutely founded on principle. It is fine to disagree with the court’s reasoning and interpretation but the court is not taking the stance of, "Cuz we said so."

Let me put this as simply as possible: “substantive” due process = “Cuz we said so.”

Putting lipstick on a pig doesn’t make it not a pig.**

The US Constitution absolutely requires interpretation. **

Show me where I said anything to the contrary. **

Interpretation is absolutely necessary and someone needs to do it. **

Again, show me where I said anything to the contrary. **

If you have a better alternative to the US Supreme Court I’m all ears. **

I never suggested that we should dissolve the Supreme Court, or that they shouldn’t interpret existing constitutional text, or that they don’t have an important role in our system of government. You’re debating a straw man.

What I DID say is that the court shouldn’t write in new provisions to the constitution – which is what they do when they invoke “substantive” due process, which, in spite of the latter two words appearing in Amendments 5 and 14, is just the court saying “because we said so.”