And, since we’ve danced this little dance before, let me add that, of course, the majority has the ability to overrule the judicial branch by amending the constitution.
You make it sound so easy! I wonder why!
Then why wasn’t that the explicit statement of the law? I put it to you that it is because the framers at least wanted to appeal to some sort of grand moral framework. That’s well and good, but please don’t come complaining when someone applies that framework more honestly than you ever intended. Judges have to stick with what the law says, not wink wink, say no more squire at the posturings of legislatures.
Again: claiming something as a universal or general principle carries a danger: the danger that someone will actually apply said principle to a case you hadn’t considered. If you want to avoid such an end, then don’t pass laws that purport to make grand statements of morality.
You say that it’s the judge substituting their own principles. Maybe that is the case sometimes, but that’s not what I am asking you. I’m asking you what does a judge do when confronted with a moral principle (someone elses principle, not their own!) that if actually applied by a rational person to a particular case before the court, would have a different outcome than the framers could have forseen? Are you saying that shouldn’t happen, because judges should try to read into the prejeduces of the framers in order to understand what exceptions and caveats they would have added had they thought of it? Isn’t that just the judges making up the law on an even more basic level?
I take another spin on the floor… 
I have to say that I fail to see what would be gained by a judicial ruling in favor of SSM. If every state SC as well as the SCOTUS were to rule tomorrow that the (state or federal) constitution demands SSM be allowed, the vast majority of the states would certainly enact a constitutional amendment to forbid it-- as many have already. On the federal level, I’d give very good odds to a constitutional amendment passing as well. Then where would we be?
Certainly judges can rule as they feel they must. In the case of Brown, there could have been a popular effort to enshrine separate but equal in the constitution. While that might have succeeeded in 1900, I can’t imagine that it would have succeeded in 1954. Unfortunately, for SSM the country is pretty much at 1900.
Fortunately, amending the Constitution takes a lot more than a simple majority.
I wonder what Mr. Lincoln would have thought about limitations on the rights of homosexuals:
“Of the straight people, by the straight people and for the straight people”?
Erase. Erase. Erase.
Here’s what Lincoln really said on another occasion:
I suspect because the framers of the fourteenth amendment didn’t think a more explicit statement was necessary.
Constitutional authors can, and ought to be able to, rely on successive generations to treat the words they write with deference and understanding based on the context of the times. They ought not have to worry about later generations treating their words as a blank slate upon which to write whatever policy preferences they cannot get past the legislature.
No, it isn’t. A good-faith effort on the part of judges to ascertain the intent of the author (be it through the text and historical meaning alone, as Scalia would prefer, or with the addition of ancillary sources), that isn’t “making up the law.” That is a good-faith effort at interpretation.
I’ve never said that judicial restraint eliminates all ambiguity, or that it necessarily leads to a clear outcome in any given case. I’ve just said it is the method by which proper deference is given to the consent of the governed. There are many sets of facts upon which reasonable, learned minds can apply strict constructionist analysis and come to different conclusions as to the proper outcome.
I, and most strict constructionists, save our ire for those cases where the attempt isn’t even made, or the attempt is so transparently fallacious as to not withstand even casual scrutiny.
Your use of the word “forseen” is a little unfortunate, BTW. It jumbles together things that the framers legitimately could not have foreseen (wiretaps) and social changes that they would simply disagree with. I’m pretty sure gay people existed in 1787, after all.
And your point is…what, exactly? I support gay marriage, albeit with a few reservations; I just don’t think we should get it by judicial fiat.
Are you suggesting Mr. Lincoln supported making those kinds of social changes via the judiciary? Do you have any evidence at all for that proposition?
Also, my apologies to the OP for what has become a huge hijack.
I’m not sure this thread is about SSM, but about “judicial activism”. My point here, and elsewhere, is that the Constitution contains a series of checks and balances, and one of those is the judicial review as a check on the power of the legislature. When judicial review is used to protect the rights of minorities from the tyranny of the majority, it is not “judicial activism”, it is a check on the power of the legislature. Now, the legislature can overturn that check with the amendment power, which has absolutely nothing to do with the misuse of the term “judicial activism.” When the judiciary uses its Constitutional powers to stop racial segregation, to permit same sex couples to sexual intimacy without being prosecuted, and to allow a person’s medical decision to be honored, they are not being “activist” they are doing their damn job.
If it does so without a clear basis in the constitution for doing so, it is being activist. Otherwise, any damn thing the judciary does can be justified as a “check.”
Indeed (to bring this back on-topic), this is exactly what the Schindlers and their backers were agitating for – they were saying that some higher principle should trump the will of the legislative majority that enshrined the process for determining PVS patient’s wishes. I contend that if they had done so, they would be engaging in activism. Is it your position that they would simply be acting as a check on the Florida judiciary?
[QUOTE=Dewey Cheatem Undhow]
If it does so without a clear basis in the constitution for doing so, it is being activist. Otherwise, any damn thing the judciary does can be justified as a “check.”
[QUOTE]
I certainly would concur with that, provided that we agree that people can have different ideas of what “clear basis” means.
But do you agree with my allegation, from either earlier this thread or another Pit thread regarding judicial decisions, that it can properly and non-pejoratively be used as the antonym to judicial self-restraint?
And that is where I found my argument about Massachusetts, by the way. The SJC was required to examine the claims of an appellant that the statute as written violated the standard of the constitution regarding equal protection. Whether they were correct or not in their analysis (which we can differ on), they found that it did in fact so violate.
But, and here’s where my JSR argument comes in: rather than voiding the statute as unconstitutional, which was their prerogative but would have been activist, thus “judicially enacting gay marriage in Massachusetts,” to quote the right-wing bloggers, what they did in fact do was to rule that the statute violated the constitution as written, and then stayed their ruling for six months, to enable the legislature to either bring statute into line with constitution, or begin the constitutional-amendment process to bring the constitution in line with the statute. (Presumably an extension of the stay would have been granted to complete the amendment process, if that route had been taken.) Ergo, they did their job as a court: hear an argument and assess its validity, then rule in accordance with the higher law, in this case the state’s constitution. Then, practicing JSR, they left it to the legislature to decide which outcome would occur: should the state constitution be amended? the statute be amended? or the court’s ruling left to take effect at the end of the stay period?
That’s why I call it JSR.
And that is complete and utter bollocks. A decision forced at the point of a gun is not a freely-made decision at all.
And the notion that they were giving them the option of amending the state constitution is just stupid. Massachusetts requires two successive two-year legislative sessions to approve of constitutional amendments before the amendment can be put on the ballot for voter approval. In short, it takes a minimum of four, and probably five or more years to go from proposal to passage. The court gave the legislature six months. Do the math.
The “choice” offered by the courts to the legislature would do Michael Corleone proud.
Well, apparently not only can you not read law, or the Federalist Papers, with any degree of comprehension, but one paragraph of my writing seems to have escaped your capacity too.
My apologies for disturbing you with a thought-out constitutional-law argument, when clearly your mind is made up on ideological grounds and you have no intent of paying attention to anything I say.
Clearly there is no point to trying to have a sensible discussion with you any longer.
That’s your take. My take is that they thought they were expressing what they held to be a moral principle enshrined in the law. Perhaps they got more than they bargained for, but that’s what happens with moral principles as opposed to technical and specific language.
That’s still missing the point. The problem I’m harping on here is something that can happen even in the exact same times a law has been written. The problem comes from the fact that moral principles, or any sort of general principle, can have unanticipated implications if you actually try to apply them rationally in practice. It happens all the time in ethics: why not in the law?
Again, sure. But they SHOULD have to worry about what happens when they express these words in terms of grand generalist pronouncements like “equality” rather than in technical specifics.
No, it’s making up the law because it’s not actually going by the words of the law, and the implications of those words. It’s going back and randomly picking out whatever nonsense this or that Congressman CLAIMS that HE thinks the law means. But what good is that?
Given that we can’t have known how they would have thought about them given the extra insight of our modern knowledge, that’s a moot point. The real point is that they could not have necessarily forseen the full implications of their moral statements. Again, that’s the danger of expressing laws in terms of grand moral proouncements.
The same thing happened backwards in the Schiavo case. Santorum and Delay thought that the law said something that it did not. Or maybe that was all a ploy to pin the failure to save Schiavo on the judiciary. We don’t really know. But we have the words of the law, and the judges did their best to rule accordingly (well, to the extent it was even constitutional).
Well, I’d say that the right to education, the right to sexual intimacy, the right to marry, and the right to make your own medical decisions, equal protection, etc. all have a “clear basis in the constitution.” I know that there are some people who believe that, unless it’s listed in the constitution, it’s not a right, but I fear that is a very myopic view of the Constitution and its purposes. Surely you would agree that the Constitution is not a complete list of all the rights protected.
If they had gotten an amendment to the Florida Consitution, then that would be a check on the judiciary. That’s kinda how the Constitution works. The power to legislate is checked by judicial review, which, in turn, is checked by the ability to amend. Add in the checks and balances of the Executive branch, and you have a pretty good system of government that goes well beyond “well, it’s the will of the majority so that’s it!” argument.
My bolding. And on what is your presumption based? There is NO evidence that the judiciary would have extended the stay. In fact, the legislature DID try to frame a constitutional amendment, but was unable to agree on one. If the judiciary had truly acted with withstrain, they would have stayed their ruling for 2-3 years, not six months. By giving the legislature only 6 months, they essentially ensured that only one outcome was possible.
Wow, you’re a mean drunk, Poly.
Of course, I can read and comprehend law; I do it for a living. And I can read and comprehend the Federalist Papers; I’ve cited and argued from them in numerous constitutional discussions on these very forums. And frankly, they support my position far more than they support yours. I note you haven’t cited to a goddamned thing in making your argument other than emanations from your own ass.
And of course, I can read and comprehend your argument. And it is far, far, far from a “thought out constitutional law argument.” The fact that I can completely eviscerate it by simply pointing out the process for amending the Massachusetts constitution demonstrates that.
Someone here isn’t being sensible, but it isn’t me.
It was you who first brought up SSM, with your reference to gay rights.
Not really. Judicical review is something that was established with Marbury vs Madison. There is nothing in the consitution about judicial review. Given the longstanding history, though, let’s just call that a nitpick, and move on. Hardly anyone challenges the rights of the court to judicial review.
OK so far…
I wouldn’t even argue with any of those items. But the fact is, states DO regulate marriage. Close relatives are forbiden to marry, and multiple partners are also forbiden to marry. No one would expect the courts to overturn incest or polygamy laws. You seem to be arguing, though, that the states cannot regulate marriage AT ALL. That simply isn’t going to fly.
That’s silly. It makes the business of interpreting legal documents into a game of “gotcha!,” with the judiciary checked only by their own capacity for embarrasment, essentially allowing them to shoehorn anything they want into the text, and placing the blame for that kind of behavior not with the judiciary but with the legislature. That’s just ass-backwards.
So you apply them with regards to the understood context of the author’s time. I really don’t see the problem. Indeed, it seems we limit the number of unanticipated implications by limiting our interpretations in some fashion to reflect the desires of the law’s authors.
So the Constitution should resemble the Internal Revenue Code?
Constitutional authors should be able to rely on the good faith of subsequent judical bodies.
You sure you aren’t Justice Scalia? Because that’s exactly his argument for textualism over originalism as a mode of interpretation.
Of course, even a serious-minded originalist wouldn’t support “randomly picking” quotes from congressmen. They’d support a serious historical inquiry – a good-faith inquiry, as I’ve said. And again, reasonable minds can differ on what result the framers of a law would have intended.
Really? Where? Since it’s “clear” I’m sure you can point to a straightforward basis for those things in the text, right? I can safely say there’s a clear right to not have soldiers quartered in your home during peacetime. Can you plausibly argue that those other things you’ve listed are equally “clear”?
Of course. There are ample other sources of rights: state constitutions, state and federal statutes, and the like.
My apologies for not being clear. I was referring to the urging by the Schindlers and their supporters to the judiciary to essentially ignore the law as understood in order to fulfill (in their view) a higher moral principle. That request is no different, really, than asking a court to find a constitutional right to same sex marriage.
You’re jumping from one extreme to another in an attempt to make something reasonable look arbitrary. If the legislature passes a bill that claims that there is be equality for all under the law, they can’t whine about “gotcha” when a court reads the law and notes that, rationally, as stated, it applies to Jews and the Irish. If a law says that rights cannot be limited only to particular groups, the legislature can’t slap its head and say “oh, but we forgot to add, except gays!”
Again, time is irrelevant. The problem with moral principles having broader applications than their authors anticipated exists from the moment a law is passed and signed off on. Again, consider Unger’s argument about everyone having a duty to save a person in need. It seems innocuous, but if that really IS a moral duty, end stop, then it is clear that we are all of us constantly in greater failure of that moral duty than the single instance of a man that coldly watches a child drown for want of extending a helping hand. The only way to avoid this conclusion is to make up a whole bunch of caveats after the fact. That’s the direct problem of declaring moral principles.
If the fact that courts are forced to rationally apply those principles, and that this might lead to outcomes the authors may not have anticipated, is a check on the pomposity and self-righteous arrogance of lawmakers, then that’s fine.
What you are telling me is that the Constitution (or really, the Bill of Rights) ALREADY resembles the Internal Revenue Code. If so, then it would at least be nice if it was really written than way, instead of masquerading as a document of grandiose rights.
So? What is the point of bringing this up if you aren’t going anywhere with it?
I don’t see the difference. A historical inquiry will always tell us what the framers each individually claimed the law accomplishes or says. Which, as we see in the Schiavo case, is often flat-out false.
But gee, funny how you suddenly object to hyperbole used to ridicule some school judicial interpretation!
How in heaven’s name you got from"some rights exist" to “the legislature cannot regulate any rights at all” is completely beyond me. It’d be completely baffling if you said that since there is a freedom of speech in the Constitution, the legislatures cannot regulate it at all. Please explain.
Equally clear, or clear? I’ll admit a specific enumeration of a right in the Constitution may be more clear than one that isn’t. But that doesn’t make the rights any less “clear”.
Well, it seems to me that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” seems a pretty clear statement by the founders that the Constitution is not the sole list of what rights exist. Many of the fathers were terrified of the point of view you seem to be advocating. And stating that there must be some pre-existing textualist enumeration in state constitutions or statutes before the founders considered something a right is… well wrong. The secondary sources you obviously have read, almost without fail indicate that there exist rights beyond those put down in writing. Seems pretty clear to me, I don’t know why you have a problem with it.
Of course it is different. Marriage is a fundamental right. Although the Constitution does not specifically say “Congress shall enact no law infringing upon the freedom to marry”, I think you’d be hard pressed to say it isn’t. In addition, there’s Loving, and other precedent, that hold that it is. The Mass. Supreme Court followed precedent, and, without being “activist” made a ruling clearly in line with that, and other, precedent.
I suppose your point of view would make sense if you believed that the recognition by the judiciary of any right not specifically enumerated in the Constitution is “judicial activism”. I think you run into the same problem when arguing that only the legislative branch is allowed to determine what rights exist and how they can be enforced. I think both arguments are clearly against the text, history, and meaning of the Constitution.
Now, I’m going to be indisposed over the 3 days, so I won’t be able to respond, but, if you can be patient, hopefully we can continue this discussion. I know you’ve done it before, but I’ve never jumped in before.