i’ll have to get back to you with actual evidence here.
perhaps i should’ve been more clear, but i didn’t mean that they were the court that made the most liberal decisions, just that the personal leanings of each of the justices probably exceeded in its sum of liberalism (there has to be a clearer way to say that) that of any other court. but i’ll get back to you with more.
Homebrew noted that this decision would not pass muster today, and i don’t doubt that. in fact, the cases were reheard and reversed in the early 80s. my point was, though, that when you ask for a broader interpretation of the constitution, i think you’ll get decisions that hurt you a lot more often than you think.
[hijack?]the real problem, though, is when people are afraid of being labeled “activists”, and give too much deference to the legislature, such as someone like frankfurter. i think the constitution and its jurisprudence are the only form of protection against the “tyranny of the majority”, and i hate to see justices refrain from striking down a law that is clearly prohibited by the wording of the constitution because they wish to defer to the legislatures (the early jehovah’s witnesses cases come to mind, as do some segregation cases).[/hijack!]
Well, I agree with your second paragraph here so much that I think it probably applies to the first paragraph. I.e., as I understand it, those two cases didn’t involve a broad interpretation of the Constitution…They involved a very narrow one that said, “We don’t see anything unConstitutional here…Move along!”
You are distorting my point which is simply that there is no completely objective “what the Constitution says.” It always must be interpretted. You and Scalia want me to accept your interpretation as the right one. …No thank you…
And, since it is the President that you and he support (and he helped select) who has taken 1984 to new heights of ridiculousness. “Economic stimulus package”, “healthy forests initiative”, “Clear Skies Initiative”, you display quite a bit of nerve in suggesting that our greatest danger comes from others doing this.
Well, you may think that those two amendments are unambiguous but others do not agree with your interpretation. (In regards to the second, they understand the use of sentence structures that involve clauses for example.) And, this isn’t really an example of what I was asking…These are amendments in name only as they were adopted at the same time as the Constitution. What I was asking for was a case when people didn’t like they interpretation that the judges were giving to the Constitution (or just felt something was missing) so they passed an amendment to explicitly put in the other interpretation and then the judges just continued to ignore it (or say that it didn’t mean what those who crafted the amendment fairly clearly intended it to mean).
Your claim was specifically that there was no way to overrule a judge’s interpretation because they would simply interpret your new amendment any way they wanted to. Surely, you can back up this claim with an example?
Oh right, I forgot one of the fundamental principles of limited government…The government has the right to intrude into your bedroom if a majority of people see fit to enact a law to do so. How silly of me!
Well, you are certainly entitled to your opinion and I am entitled to say that I think it is basically just bullshit.
Finally, as a nontheistic humanist, I am wary of someone who appears to be so strongly aligned with a particular religious denomination. Especially a denomination which is - uh - arguably on the conservative and intolerant side. I can understand why women or gays might not be thrilled with a strongly Catholic jurist, much as that jurist might try to keep his religion’s dogma separate from his official function.
And I specifically mentioned that there was a gray area of interpretation, so don’t distort my point either.
The thing is, Scalia and I can point specifically to the text of the Constitution and say, in ordinary terms that can be understood by reasonably intelligent citizens, why exactly a ruling is made the way it was.
Judicial activists have neither the need nor the ability to do this. The Constitution is a fig leaf over their power grab. Since the text of the Constitution is not limiting on them in any way, their power is, well, unlimited.
Bush is evil blah blah blah… Perhaps someday liberals will be able to stick to a topic without reflexively jumping to attacks on Bush in threads that have nothing whatever to do with it. Perhaps.
I should live so long.
Well, no duh. Some people say that it doesn’t matter what the Constitution says. They want to issue edicts based on their own notions of what society ought to be like. But I think once you have admitted that it doesn’t matter that “the Constitution says what it says”, then you have taken the step beyond interpreting something to rewriting or ignoring it.
If it doesn’t matter that the Constitution mandates limited government, then your objection to the government intruding into my private sex life is meaningless. If the Court says that this is OK, then by God it is OK, and you get to shut up about it. The Court has spoken, and it doesn’t matter whether or not the Constitution has addressed the issue or not - it does because the judges interpreted it as doing so. End of discussion.
I think we have found one of the problems with the “living document” approach.
When you said “amendment”, I thought you meant “amendment”. So all those paragraphs in the Constitution labelled “Amendment” were what you wanted to see.
And now it turns out that I should have interpreted your post as a living document, and “amendment” really meant something else.
The problem is, that it now becomes clear that the language of your post really has no meaning at all. If I interpret it correctly, when you say “that isn’t what I meant”, you really mean something else. And there is no way to tell what that might be. Fortunately, neither of us holds any power over the other, so it doesn’t matter what either thinks the other means.
If one of us had the power to enforce his “interpretation” of this thread and find one of us guilty of treason, that would be a bad thing, don’t you think? Especially since there is no way to prevent any defense as being “interpreted” as a confession of guilt.
Which is what I would like to avoid from the Court. If you see what I mean.
I will interpret that as meaning that you are entirely in agreement with me, and find my arguments unanswerable.
Yes, I understand what you are claiming. I am merely disagreeing with you that it is any easier for Scalia to explain Bush v. Gore to me as it is for a majority judge to explain Griswold or Lawrence to me. Maybe to you, it is different, which is why I don’t believe that Scalia and Shodan have the one correct interpretation of the Constitution…or even a more objective interpretation of the Constitution.
Charming to the last. But that’s an impressively long-way to avoid my question. First of all, you haven’t demonstrated “an example where the Constitution was amended and then the judges ignored the clear expression of the amendment”, you’ve only demonstrated an example where Shodan believes the judges have ignored the clear expression of an amendment. Do you comprehend the difference?
Second of all. Okay, I apologize for not fully spelling out what I wanted here. I kind of thought you would understand your own argument well enough to understand what I was looking for without me having to write a freakin’ treatise. You argued:
What I then wanted was for you to demonstrate this idea that if the citizenry is unhappy with an interpretation of Constitutional or other law then the citizenry is powerless because if they amend the Constitution, judges unlike Scalia and Shodan will simply ignore what they clearly say and interpret it however they want. I thought if there is a real danger of this, you ought to be able to come up with an example where this scenario has played out. If not, you’ll have to admit that it is merely hypothetical and relies strongly on your own interpretation of how judges unlike Scalia and Shodan interpret Constitutional law. Is that clear enough for you, my friend?
By the way, just to be a little less extreme here, I should note that I think the debate over how to interpret the Constitution is truly a difficult one. I don’t want to claim that it does not raise lots of complex issues. It is just the simplistic arguments of Scalia and his defenders that his is the right and most objective way that drives me batty.
And, in this regard, I present here for what it is worth a link (and see also the afterword) to an opinion piece in the liberal magazine The American Prospect by one of its co-editors, Paul Starr, where he argues that the Massachusetts Supreme Court ruling on gay marriage was judicial overreach and, as a practical matter, is likely to produce a backlash that would not have occurred if they had not argued that civil unions were not enough to guarantee equal rights. Here is Starr’s opinion on the ruling itself:
But if your theory of the Constitution is correct, it matters not at all whether the judge can explain anything or not.
There is no need and no possibility to defend or to explain any decision by the Supreme Court - their interpretation is correct by definition, regardless of objection, and no amount of pointing to clauses in the Constitution that clearly contradict their ruling is going to help. The Constitution is a living document, therefore any interpretation that the Court decided on that brought about what they think is a good thing (Bush as President) is automatically correct.
Bush has the right to be President because the Supreme Court thinks this is a good thing, and anything the Supreme Court thinks is a good thing is established as a right. What the Constitution says or doesn’t say is irrelevant - the only relevant issue is what the judges think is a good thing. Vox judice, vox dei.
Sorry, this is a game any number may play. If you are going to deny that there is any way to agree what words say or mean, then there is no point in arguing.
If you deny ab initio that there can be consensus on what the Constitution means by “people” or “federal” or “shall not”, then I will need to deny that your denial has any interpretation on which we can agree. If words don’t mean anything, then neither would argumentation. As my example of my previous post was meant facetiously to establish.
Sorry, but I already provided two examples of amendments whose plain sense had been interpreted away. Unless you have a valid reason to believe that other amendments would not be treated as have the Second and Tenth, and for the same reasons, I will have to decline to supply examples until you address the previous.
If you absolutely must, then use Plessy v. Ferguson as an example of interpreting away the Equal Protection clause, and explain on what basis we can tell that Equal Protection means that “separate but equal” is a violation. If it doesn’t matter what the Constitution says, there is no reason for Brown v. Board of Education other than “the court thinks integration is a good thing, regardless of the Constitution” just as they used to think segregation was a good thing regardless of the same. Neither decision can be justified by reference to the Constitution. Nor, if your theory is correct, is there any need to.
Unless “equal protection” has some meaning on which we can agree.
Where did you get that idea? And, I believe it is Scalia who is trying to claim that there is one objective way to interpret the Constitution and everyone else is wrong. (Okay, to some extent, everyone thinks their interpretation is correct but I think Scalia is the most dogmatic in touting his objectivity.)
That the Constitution is a living document does not mean what you seem to think it means. In particular, it does not mean that you can decide anything without reference to the text of the Constitution to justify it. It has to do with how you go about interpretting that text in light of modern issues and modern moors.
Well, correct me if I am wrong but Scalia, and the others who seem most sympathetic to his strict constructionist point of view (Thomas and Rehnquist) are in fact among the ones who made this decision…And, those 3 in particular are the ones who defended it most dogmatically (by signing on to an opinion that one of them wrote that went further than the majority would).
If you deny ab initio that there can be consensus on what the Constitution means by “people” or “federal” or “shall not”, then I will need to deny that your denial has any interpretation on which we can agree. If words don’t mean anything, then neither would argumentation. As my example of my previous post was meant facetiously to establish.
[/quote]
Look, you are arguing that you know the correct interpretation on two amendments when there is a large body of legal scholarship and precedents that interprets it differently than you. And, now you are getting all pouty because I won’t roll over and agree that your interpretation is correct?!?
At any rate, I don’t make the claim that most people can’t come to an agreement on anything in regards to interpretation. I am merely arguing that they won’t agree on everything and in that case I don’t automatically believe that Shodan and Scalia’s interpretation is the one we should deem to be correct.
In other words, “I made a claim that I can’t defend…or at least provide a compelling example for…but I still refuse to back down. (And, I am going to continue to argue that my interpretation of the Second and Tenth Amendments is manifestly correct and the great body of legal scholarship arguing the other way is manifestly wrong.)”
Well, I would tend to argue that, while I think Plessy vs. Ferguson was wrongly decided, it is not clear to me that it is an example of the full thing I talked about…i.e., the Constitutional Amendment wasn’t passed in an explicit attempt to deal with this specific issue and then the Court chose to interpret it away. The Amendment was passed to deal with a broad array of issues and the Court gave it a very narrow interpretation. In fact, some might argue that this narrow interpretation was more in line with a “strict constructionist” point-of-view.
So, in order to make this example work for you, you would need to demonstrate that the justices who were in the majority in Plessy vs. Ferguson were more in a “living document” camp in regards to the Constitution and those who dissented (were there dissenters?) and then the justices in Brown v. Board of Education were more in the “strict constructionist” camp. In fact, my impression was that the strict constructionists, or at least their ideological mentors, were the ones who didn’t like Brown v. Board of Education. There is, for example, the issue of a memo written by Rehnquist in 1952 when he was clerking for Judge Jackson:
Rehnquist has claimed in his confirmation hearings that this was a memo written for Jackson by Rehnquist but that the “I” refers to Jackson and not Rehnquist himself. However, it does tend to strain credibility a bit, considering a number of facts including how Jackson eventually voted in the case.
Irregardless of this, my guess (although I’d be happy to stand corrected) is that at the time that Brown v. Board of Education was decided, those in opposition to the decision probably argued that the judges involved were exercising judicial activism and reading more into the Constitution than was really there.
i’m going to have to go ahead and claim that “judicial activism” is a term that now lacks any substance.
with the perspective of my recent readings of the history of the court, it seems that “activist judge” is a title reserved only for a judge who is in the majority in a decision that strikes down a law that someone really wanted to remain a law.
in the 50s, the activist judges were the people who felt that seperate was inherently unequal, and the accusation came from people who didn’t want to send their children to school with “niggers”. now, activist judges are STATE judges (! i make this point because there is no reason to believe that gwb has any clue regarding the history of interpretation for MA’s constitution) who struck down a law they saw as having the singular purpose of marginalizing a subset of the population.
in short, an activist judge is only someone who does something someone doesn’t like, regardless of whether or not the text of the law supports his position. hell, i would be surprised if scalia wasn’t called an activist for his flag-burning decision.
No, I established the claim and provided two examples.
Your response, as far as I can tell, is that those examples didn’t count because the Second and Tenth Amendments aren’t really amendments, even though that is how they are labelled in the Constitution.
So for some reason the process of the Court “interpreting” and explaining these amendments away doesn’t count as examples of the Court interpreting and explaining away amendments.
I am sorry to say I do not find your rationale for refusing to address these examples compelling. Unless you can give some reason why an activist court would treat the plain text of newer amendments with greater respect than they do the original ten, it seems to me that you are trying a variant on the No True Scotsman argument.
As in “An activist Supreme Court would never try to interpret away an amendment to the Constitution.”
“But they have interpreted away both the Second and Tenth amendments regularly.”
“But the Second and Tenth Amendments are not true amendments.”
The burden of proof now lies with you to justify your assertion that an activist Court would treat brand-new amendments in such a way as not to “interpret” them away.
In other words, if they don’t care about the Bill of Rights, why would they care about the rest of the new amendments?
My take on why the Court tends to ignore the Second and Tenth Amendments is twofold:
[ul][li]The Bill of Rights is, as you point out, older. Thus the slow accretion of precedent has had much more time to inflict the death of a thousand cuts on the older amendments. This is true to the point that, in Roe v. Wade, an activist justice can assume a right to abortion nowhere addressed in the Constitution because the Court is so used to looking at precedent rather than the Constitution that he feels he can find whatever he likes by “interpretation”. [/li][li]The Bill of Rights addresses rights that are more fundamental (the process by which new rights are established, for instance), and more inconvenient to an activist court (the right of the people to keep and bear arms). Thus a court who wishes to accrue power to itself is more likely to ignore the Tenth Amendment than they would, say, the twenty-second. [/ul] [/li]
So, if you have any reason to show that the Court will dismiss the text of the Bill of Rights but treat the plain meaning of some other amendment it dislikes with scrupulous care, let’s hear it.
One thing I didn’t know before now was that the Cheny/Scalia trip was a junket paid for by one of Cheny’s oil-service buddies. That puts a somewhat different spin on the issue of Scalia’s conflict: not only was he partying with someone who’s political interests lie in the concealment of his records, but partying on the dole of someone who might well be one of those being concealed.
The Sierra club has now officially called for his recusal.
I find the arguments that SCOTUS disregards Tenth Amendment to be disingenuous.
Just as there have been few if any cases based on the Federal right to establish post offices, there have been few if any cases based on the states’ rights under the Tenth Amendment.
But this isn’t because they’re ignoring it.
Rather, Article V states that the Federal government is supreme under its delegated powers. The Fourteenth Amendment states that the rights and privileges of U.S. citizens may not be abridged by the states.
What the Tenth Amendment does is to guarantee the residual sovereignty of the states. Any power which (a) is not exclusively delegated to the Federal government, and (b) does not abridge Fourteenth Amendment rights, is reserved to the states.
That means that every case in which Tenth Amendment powers may be exercised or challenged is also either a case in which the courts must examine whether the Federal government has exclusive jurisdiction or where a Fourteenth Amendment right is alleged to have been violated.
It’s like questioning whether you have the right to eat asparagus in your own home. Nobody alleges otherwise. If you’re force-feeding a child asparagus, you may possibly be in violation of child-protection laws. If you’re forcing guests in your home to eat asparagus at gunpoint, you’ve probably broken a criminal law. But the basic right to eat asparagus is not in question.
To be a valid “case or controversy,” any question involving Tenth Amendment powers has got to also include something that might infringe on those powers – and that something is either an assertion of exclusive Federal jurisdiction or an assertion of civil rights.
If there’s no question involving either of those issues, there’s just plain no court case suitable for ruling. There is no Constitutional question in the indisputable power of a state to set up a Department of State Parks or to erect a stop sign or to make the theft of newspapers from vending machines illegal. So no such cases go to the Supreme Court.
Thanks for pointing this out and stating it so succiently.
As for Shodan, at this point, I think I will have to give up on you. I explained things as best I could and it is there for everyone else to read. Polycarp has now added an argument why he doesn’t find your claims about the Tenth Amendment to be compelling. You can continue to live in your insulated little Shodan-world where Shodan and Scalia know the one and only correct interpretation of these amendments and the rest of the Constitution…And, anyone who doesn’t agree with your interpretation is just ignoring what these amendments plainly say. (And, you can also continue to live in your bizarro-world where somehow Brown v. Board of Education gets put into the camp where the strict constructionists are for it and the others are against it even though that seems to go against the historical record, as near as I can tell…You didn’t even bother to respond to this issue.)
The Tenth Amendment is not designed to balance powers between the feds and the states. It establishes that the federal government is entitled only and solely to the powers enumerated under the Constitution.
The Ninth Amendment establishes that there can be new rights established. But the federal government has no role in establishing them, which role is reserved exclusively to the “states, or the people”. Not the feds.
The Fourteenth Amendment establishes that the states may not limit those rights established under the Constitution. But no new rights established under the Constitution can be established any way other than by “the states, or the people”. New rights under the Constitution cannot be established by the federal government.
Roe v. Wade is such a case.
In Roe v. Wade, the courts found that no states had the power to regulate abortion during the first two trimesters of pregnancy. IOW, the Federal government had exclusive jurisdiction over abortions performed during that period. And it established a civil right to abortion. So we have both an assertion of exclusive Federal jurisdiction, and an assertion of civil rights.
Since the Tenth Amendment makes it clear that all new rights ought to be established “by the states, or the people”, Roe v. Wade was in violation of the Tenth Amendment. And the Tenth Amendment was ignored.
I mentioned above why I do not find his argument compelling, with the same example of Roe v. Wade I mentioned before.
But if you cannot come up with a response other than the “No True Amendment” you proposed above, you are probably correct that the thread ought to die a natural death.