How would Robertson v. Baldwin be astounding? You sign a contract and you have to fulfill it. Seem pretty cut and dried to me.
Most people would consider the Thirteenth Amendment to have banned indentured servitude, which is what the case sounds like to me. Extend the principle to any other form of employment- a factory worker or a coal miner for instance- and it would mean the establishment of something close to an industrial form of serfdom.
But the part I consider astounding is that the ruling is more or less diametrically opposed to the modern tradition of a “Living Constitution”, and the progressive rulings on civil rights that have held sway since the 1950s. And afaik has never been overturned or repudiated.
Well, that IS an 1897 case. That court had just the previous year made “separate but equal” the law of the land, too.
The court does not “repudiate” prior decisions motu proprio. When/if some judgment made on the basis of Robertson v. Baldwin ever makes it back up the appeals process there will be the chance to overturn. But the Jones Act in 1920 and other later related statutes have legislated specifically about the labor rights of merchant mariners in the USA, thus trumping whatever was the prior Common Law or tradition. So it’s unlikely to come about.
Where did the Supreme Court fit into the process? (I’m thinking that it didn’t until Marshall found a way.)
Not really. If I sign an employment contract for one year and don’t show up for work, the employer may sue me for damages, but cannot detain me and force me to come into work.
I have never heard of this decision, but will read it tonight. It seems to validate my view of the Bill of Rights as largely recognizing rights already held by the people and not granting positive rights.
Take the Fourth Amendment, for example:
[QUOTE=4th Amendment]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[/QUOTE]
Note that it does not say something like “The people are hereby granted the right to be secure…” It assumes that the people have such a right and declares that the right shall not be violated.
So it seems that the Robertson decision is correct in saying that the BoR did not intend to modify anything about the English common law. The federalists believed a BoR unnecessary.
Against that historical backdrop, it seems silly to say that these provisions demand recognition of same sex marriage or abortion on demand.
That is not to say that the law should always be what it was in England in 1688. However, the common law made by the King’s judges gave way to the Supremacy of Parliament and to the people. That tradition was carried over to the United States.
To those aggrieved by laws against abortion or sodomy, they should air those complaints to the Legislature to change the common law and not look to judges to invent new rights out of whole cloth. When judges have that power, and determine that the Constitution evolves with the times, they also then have the power to read out of the Constitution rights that we do have.
Not to hijack this into a gun debate, but the history is clear that free people had a right to keep and carry arms. The Second Amendment reaffirmed that right with an explanatory clause about militias. Nonetheless, cities were actually arguing that the government had the power to ban the people from even owning firearms and keeping them in their homes. They argued that due to changing circumstances in an urban environment, the Second Amendment was outdated as it was drafted at a time when the country was largely rural.
Under traditional judicial roles, this argument would have been discarded out of hand. But the notion of an evolving Constitution allows it to be made.
Which of our rights are safe under the evolving standard? Maybe due to terrorism the 4th Amendment, or the right to trial by jury is outdated? The right to a lawyer? Ah, they just help guilty people get off, and in this modern day of higher crimes rates we can’t allow that.
The only way to keep a free society is to demand that judges base their opinions in the historical roots of the law. If they start determining that “things have changed” then there is no basis in their decisions other than what they personally believe is an admirable outcome. That leaves them as nine unelected lawyers deciding policy for the entire country. That is not democracy.
Not to answer for Bricker, but I would guess that nobody was sure yet. The Bill of Rights had only been enacted seven years prior. The idea that the Supreme Court could declare an act of Congress or a state legislature to be unconstitutional was of debate during that time. Jefferson and his party believed that the Court did not have that power, while Hamilton and his side believed it did.
Marshall pulled a great play on Jefferson, ruling in his favor while at the same time declaring the law unconstitutional. Jefferson was in a position of not knowing whether to shit or go blind because he won. How do you protest a win?
But to answer the larger question, Washington probably did not know all of the perils that might happen in the young country. He was simply admonishing people to make sure that the rules are strictly followed so that a precedent wasn’t created to allow for an informal amendment to the Constitution.
There are several reasons presented in this thread for why the 14th amendment was passed (i.e. providing for civil rights for the newly freed slaves, abolishing the black codes) which are specific to the end of slavery, and the Slaughterhouse case (which represent the first time the 14th amendment was interpreted by the Supreme Court) affirms that interpretation.
But I disagree with that narrow an interpretation (and the Slaughterhouse cases are generally viewed by scholars as one of the court’s unenlightened moments). The men who wrote the 14th amendment were men of law, and they understand the impact of their words. If they, in the parlance of the time, wanted to limit the rights to “Negroes” or “person in previous condition of servitude”, they would have.
They chose not to.
It protects “persons” or, alternatively, “citizens”. And thus, their intent was to provide Federal power to guarantee equal treatment to everybody. It was an abrogation of State sovereignty, and expressly gave the Federal government power of enforcement (i.e. Section 5).
And, in terms of interpretation,
[QUOTE=Bricker]
That’s correct – diving what their intent was is fraught with peril.
But reading their text, that we can do. This is the distinction between a textualist and an originalist. A textualist says that the law means what it says.
[/QUOTE]
is the only logical sense to make of constitutional interpretation.
Because Originalism is absurd (which even Scalia, when pressed, would admit). Consider this scenario: A society, governed by our 8th amendment, which considers being tarred and feathered to be cruel and unusual punishment, would not be able to outlaw tarring and feathering as cruel and unusual if the drafters of the 8th amendment had used tarring and feathering as a punishment. But, if that same society re-adopts the 8th amendment as a new amendment (with identical language), tarring and feathering becomes unconstitutional.
And that’s an impractical and unworkable means of governance. I can guarantee you that the Founding Fathers were not conceiving of television or radio when they drafted the 1st amendment. What is a court to do when a 1st amendment argument comes up in a case involving electronic communication? Shrug their shoulders and say, “There’s no law on point?” Are we, as a society, supposed to re-adopt our bill of rights whenever technology (infrared vision, television, smart phones, et al.) or social mores develop or change? That creates a legal system that is unresponsive to its citizenry, and one which would not last.
So what is the solution? You let the judiciary do its job and interpret the law. People who decry judicial activism are usually just on a political soapbox; judges do make law. Because NO black letter law can anticipate all instances, in all contexts, with all facts.
The law is written, those unpredictabilitys we call life happen, and then the legal system applies the law, starting with what is written, and then using tradition (i.e. the common law) as a basis, and adding common sense, and logic to arrive at a just result, and guidance so there is consistency for the future.
So, yeah, the 14th amendment, as written, reads like no laws can ever discriminate, which of course must happen if we are to divide people up into “criminals” and “society.” So the court creates a system of analysis, with buzzwords (like “rational basis”) as a standard for the future. And when confronted with more unique circumstances, like other historically persecuted classes of people, they enhance the standards for the government to meet, in complying with the spirit of the law, as revealed by its words.
Critics say that this is making law. I argue that this is the proper function of the judiciary. The alternative is an unresponsive legal system that would destabilize society.
This is instructive because it is a good point. But it doesn’t paint the death knell for an originalist/textualist. Let’s assume that in 1789 there was no question that tarring and feathering was not cruel and unusual punishment. It was allowed. Let’s also assume that in 2016, a poll is taken and 83% of people believe that tarring and feathering is indeed cruel and unusual.
Your method of judicial construction would be that a judge should say that it matters not what the framers felt about tarring and feathering in 1789, but that a judge should look at the evolving standards of decency in society and say that in 2016 it is cruel and unusual and therefore not permitted.
I would say that a judge should look at the text and then the history behind the rationale for the amendment. If the history shows that the framers wrote those words yet permitted that method of punishment, then that punishment is not covered by those words.
And here is where my side usually gets Borked and the implication is that we somehow support tarring and feathering. I certainly do not and there are ample ways to outlaw such a punishment without the need to falsely claiming that the 8th amendment prohibits it.
For example, would your state legislature permit it if it was allowed? Neither would mine. If there was indeed a danger of one state even allowing it, then there would be an opportunity to see if 2/3s of Congress and 3/4ths of the states believed that the form of punishment was so bad that it could prohibit the single state from doing so.
If you cannot get that support, then by what basis would you deny a sovereign state that power? It doesn’t come from the framers, not the state legislature, and it doesn’t come from contemporary support. It would only be because five unelected judges subjectively disliked that particular punishment. That is a job for a legislature.
As far as simply reenacting the 8th amendment and getting a different result, I fail to see why it is absurd. If the 8th is enacted in 1789, we have a different body of history to look at then if it was passed last month.
If in 1950 I ask you to come over to my house because we will have a “fun and gay time” that would mean something different than if I used the exact words in 2016.
I don’t know why any textualist or orginalist would be so hyper-literal. If I am stating something on the internet, is it not still speech even though the framers never imagined the internet? I have never heard of any judicial philosophy that freezes technology in 1789.
I would guess that your objection is that I freeze the beliefs about cruel and unusual punishments to 1789 beliefs, but I would still follow through with modern technology. I think I am consistent. Free speech means what it did in 1789 as does cruel and unusual punishment. Judges can fairly apply old ideas to changing circumstances, but cannot allow changing circumstances to change old ideas.
This is a strawman. I am not opposed to judges discerning the meaning of ambiguous text, or determining if certain words permit or prohibit this or that action. That is indeed what judges do. However, the methodology needs to be grounded in something other than their own personal opinion or it is rootless.
(emphasis added). The bolded part swallows everything else you wrote. Whose common sense? Whose logic? A just result according to whom?
Once you get past history and tradition, the judge is simply following his own subjective beliefs about what is just. If one judge believes that prohibiting gay marriage is demeaning to healthy relationships based upon love, then common sense and logic will tell you that those laws are unjust.
If a different judge believes that a homosexual lifestyle is destructive to good public morals and the institution largely recognized for its procreative purpose, then common sense and logic tells that judge that the laws against same sex marriage are just.
But you see what each judge is doing under your proposed way of thinking? He or she is simply injecting his or her own opinion and passing it off as some sort of judicial analysis. It isn’t. Those are policy decisions that have always been thought to be held by the people.
You claim that my way of thinking would make governance impractical as times change. I’m not sure how. The first way that people can change their laws is through the legislature. Pass a law legalizing abortion or gay marriage. Many states did. It is easy as pie to change a law.
However, your side (some, not necessarily you) are not satisfied with a legislative victory in your state. You (the general you) after having legalized the latest decree from the liberal ivory tower in your state, want to show those backwoods inbred hicks from the red states that you will also tell them what to do in their states and attempt to constitutionalize the issue to take the matter out of the hands of those people.
If that is what you mean by changing society is hard, then it should be hard. But it does not impose an impediment to those things that you believe are now settled. Just like the tarring and feathering debate. Your side would say that no civilized people would support it. If true, then there are no worries because no states would pass it. If some would, then that shows that your major premise is wrong because some civilized people would indeed support it; at least a majority of people in a state. If the argument is that those people are not then “civilized” we are back to the same point about looking down from the ivory tower at the workers carrying your piss bucket.
I do, however, appreciate your post as it was well-written and I believe puts forward your view of judicial philosophy very well. But I think it is simply wrong for the reasons I have said.
[QUOTE=UltraVires]
I do, however, appreciate your post as it was well-written and I believe puts forward your view of judicial philosophy very well. But I think it is simply wrong for the reasons I have said.
[/QUOTE]
I’d like to start with this. Thank you for your kind words. I find the intellectual exercise of constitutional jurisprudence to be fascinating. Like you, I am trained in the law, and my experience has taught me to be fascinated by the “science”, if you can call it that, of reaching legal decisions. By no means do I lay claim to being a constitutional scholar, but I like this subject. I oftentimes find myself liking a decision while not liking its rationale or how it was written (i.e. Obergefell, or some of the civil rights cases).
I think this is flawed for two reasons. First, it presupposes that there was unanimity and clear consensus at the time that the 8th amendment was written. While you recognize the impossibility that there would be a 100% vote (regardless of the result) today, you are suggesting that there was a clear standard at that time. More specifically, you are suggesting that the legislative body that drafted that amendment was of one mind.
We saw upthread a statement by one of the authors of the 8th amendment that he believed it to incorporate the first 8 amendments of the constitution on the states. Does that now make it so, even if his contemporaries disagreed with him? Madison, Hamilton, Jefferson, and the other founding fathers immediately disagreed on the meaning of their constitution as soon as the proverbial ink was dry…hell, Jefferson disagreed with himself, if you compare his actions as President with his earlier beliefs about the limits of executive power.
Even if you simply leave the basis of original intent as “the prevailing standard at the time of passage,” and cast aside the individual opinions of the politicians who wrote the law, how does a court know what such consensus was without conducting research and applying their best understanding to the meaning of the text? And if this is how the court reaches its conclusion, then why is it better to focus such research and analysis on a society decades, if not centuries, in the past, rather than on the contemporary society in which that court is being asked to preside? Either way, a court is making a “judgment call”.
Moreover, why is the prevailing standard of the time even a reasonable standard to invoke? Given our assumption that tarring and feathering was an acceptable punishment in the late 18th century, isn’t it just as reasonable to believe that the writers of the 8th amendment had it specifically in mind when they prohibited “cruel and unusual” punishment. Isn’t it likely that they wrote that amendment specifically because they had seen something as horrific as a person being doused with hot tar and paraded around town?
Perhaps you scoff, because they would have been used different language if they were thinking of something they had seen firsthand, but that dovetails into my second problem with the original intent philosophy: it ignores the plain language of the law.
As I said upthread, if the framers had specific acts in mind, they could (and would) have written it into the amendment. The fact that they chose the words “cruel” and “unusual” is important. What is prohibited is not some specific acts, but whatever constitutes what is cruel and unusual. And who determines what is cruel and unusual? Why, judges do! (And, if I may digress, that is why I find jurisprudence so fascinating. It truly comes down to what the words mean, and as lawyers we argue over meaning while judges make final decisions on those arguments. Ask any lawyer the meaning of the word “reasonable”, and they can talk for days.)
But they don’t get to do it unmoored from the law. They are constrained by the text that is written, just as they are constrained by tradition (i.e. the common law), and, when they are compelled to make analogies, extrapolate ideas, or draw parallels, they are must do so in writing, literally showing their work. This is the formula that provides consistency in the law while allowing it to adapt to the changing circumstances.
But your argument is predicated on the exact opposite; that in 2016, the court is compelled to interpret “gay” according to a 1950’s definition, even though the court is dealing with a real controversy existing in the 21st century, where everybody understand that there is another meaning. Since we have a different body of history to look at than we did in 1789, we wouldn’t we use it to arrive at decisions appropriate to our knowledge?
And, quite frankly, I am shocked that you don’t think it absurd that we should re-ratify the 8th amendment if we want to constitutionally outlaw whatever punishment existed in the 1780s. Under this idea, the nation would have to re-ratify the constitution over and over in order to re-affirm concepts and values that were decided long ago.
The genius of the constitution was not that its founders were so brilliant as to predict the future, or so divine that they laid out detailed formulas that we could apply to every facet of life. The constitution survives because it was a framework for governance, into which principles of freedom have been preserved via amendments. It is very hard to change for the reason that it is not a detailed encyclopedia. If specific legal guidelines need changing, amendments can do that (i.e. change the voting age, enfranchise women). But when principles like “equal treatment” (or prohibitions like “cruel and unusual”) are written in the text, we should read the text as written and apply the principle.
I am troubled by your assertion that “free speech means what it did in 1789”. Do you believe that laws against blasphemy are constitutional? Do you believe that profanity is constitutionally protected? Pornography?
In one breath you say that there needs to be a methodology grounded in something other than personal opinion to arrive at a legal decision, but in the next breath you decry the use of common sense and logic, which are part of that methodology.
Maybe I used my words poorly. I absolutely agree that a judge’s decision needs to be grounded in something. That something is the text before them. To apply that text, they need to be beholden as I tried to describe above: “first to the common law, and when they are compelled to make analogies, extrapolate ideas, or draw parallels, they are must do so in writing, literally showing their work. This is the formula that provides consistency in the law while allowing it to adapt to the changing circumstances.”
What’s funny is that you agree that judges need to be able to analogize and draw logical conclusions to apply the law (i.e. you agree that a judge should be able to extrapolate “speech” to internet communications). Ah, but you are assuming I am trying to give a judge the freedom to add liberal hippy shit to the mix.
Under my proposed way of thinking, the judges should look to the text first, and then to the common law for guidance, and then to logical reasoning by analogy (to the existing text or common law, if that isn’t clear). And a well written gay marriage decision would have been based on an equal protection analysis, not the “fundamental right to marriage” nonsense Kennedy wrote.
There’s a lot of unnecessary vitriol in here which you are projecting onto me. I don’t feel that way. However, I do believe that there are rights intended in some of the constitutional amendments which are intended to override popular opinion, based on the recognition that popular opinion can be harsh and oppressive. It’s about protecting minority rights in a country where majority (typically) rules. It’s not about teaching lessons or imposing values any more than upholding and following any law is about teaching people that they can’t violate it and imposing on them the value that law is trying to legislate.
In the case of the 14th amendment, the law is legislating equal and fair treatment.
So when WAS our government destroyed in this manner?
Washington was no doubt referring to a rebellion or a coup d’etat; what many complain of is that there’s been a judicial “usurpation”, where things sometimes seem to be invented out of whole cloth by a majority of nine.
I’m sure **Bricker **has a unique legal definition for “usurpation” that applies to Supreme Court rulings.
The specific issue of SSM being required by that amendment never crossed their minds because it is absurd.
The idea of the states or the people changing their minds, even in absurd ways, certainly crossed their minds, which is why they included a process to amend the Constitution. If they thought the Supreme Court could simply make up things, they would not have bothered to include the Tenth Amendment.
Regards,
Shodan
But the idea that people can interpret the Constitution and other laws in different ways certainly did occur to them, which is the reason for the existence of the Supreme Court.
The Supreme Court interprets law differently than you do in some cases. The Founders were well aware that the Supreme Court sometimes might interpret a law in a way that makes no sense to certain individual Americans.
Saying “the union of one man and one woman” means “the union of two men or two women” is not interpretation.
Regards,
Shodan
OTOH that definition is not part of the Constitution anyway.
Maybe not Antonin Scalia, but I see it all the time where arch-conservatives say exactly that it doesn’t apply to the states. Anytime there’s a case where a state is told they can’t show favoritism towards Christianity (such as in prayers at football games, Ten Commandments monuments on government property, or proselytizing teachers), the conservatives will claim that the First Amendment only applies to LAWS passed by CONGRESS, and has no bearing on local governments.
Read Ed Brayton’s blog sometime. It’s so common that you can set your watch with those claims.
I agree. I don’t know what this has to do with our conversation, though.
Correct. The definition of marriage was not established by the Constitution, it was established by law.
The Constitutional issue was if someone was being denied the equal protection of the law. If somebody was saying to a gay man “you can’t marry a woman because you are gay” then that would have been a violation of the Constitution. That isn’t what happened. What happened was that the Supreme Court changed the law. That’s what’s called “judicial activism”. Judges are supposed to apply the law, not create it.
It has to do with the fact that we now apparently agree that the Supreme Court’s action was not interpretation, and was therefore illicit.
Regards,
Shodan
It’s too bad the Founders never provided a constitutional means to settle disagreements about the law.