Freespace has an excellent post dismantling the concept of “anti-democratic judges.” Here’s a sample:
The courts exist to put a check on the extremely dangerous power of the majority. Whenever anyone attacks the courts for violating the “right of self government,” what he is really saying is that the majority should have unstoppable power to do whatever it wants regardless of the Constitution. Such claims should be viewed with the severest skepticism, because it is only the Constitution’s limits that prevent us from becoming a government of the mob. As Madison said, if the majority is the sole judge of whether its acts are right or wrong, then “anarchy may as truly be said to reign, as in a state of nature, where the weaker individual is not secured against the violence of the stronger.” This is why we chose to institute a legal system as a check on the majority’s tyranny. The courts are part of self-government.
Read the whole thing. (Via Positive Liberty).
This particular subject is a real sore spot for me. Invariably someone always brings up:
“The courts exist to put a check on the extremely dangerous power of the majority.” or something similar.
But they never have a good answer to who checks the power of the courts and how? Who is watching the watchers? The courts are supposed to be a co-equal branch of government. Instead they somehow become the most powerful with the final word on constitutionality (which, interestingly, they gave themselves that nice chunk of power in one of thier own decisions).
I think the problem with unchecked court power has gotten a lot worse the more the constitution is viewed as a “living” document and there is no longer a need to interpret it with “original intent” in mind.
If the interpretation of the constitution changes, then “effectively” the constitution has changed until there is a different interpretation. If the court can interpret the constitution to mean anything they want (and they can!), then they have to power to change the change the constitution on a whim of one un-elected, unaccountable person (4 to 3 decisions).
Take for example the recent campaign finance reform decision. The courts agreed that contributions are political speech but somehow they found a “compelling reason” to limit it. Well here is the 1st amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Notice the words “compelling reason” do not appear in it at all. Notice also the words “Congress shall make no law”. It seems pretty final to me. However, the new interpretation allows the congress to make a law limiting the political speech because of a new found “compelling reason”. They have effectively changed the meaning of the 1st amendment, without amending the constitution (the only constitutional way to change it in the 1st place).
I am sorry, that is way too much power to entrust to people too far out of the reach of the people.
Suppose in 20 years they find a compelling reason to limit the freedom of the press to not criticize sitting representative during an election year. What would the recourse be? Would we just have to live with it?
Nathan Newman made a good case that progressive causes have lost more than they gained over the long run do to an independent judiciary – that the courts violate rights more than they protect them. And the argument that “we the people” established an independent judiciary is historically wrong. The “independent judiciary” was established as part of a system designed to protect one particular minority – rich white males, especially slave owners. It was established without the votes of women, people of color, non-property owners. And it was set up in such a way that to change it you would the consent of a number of simultaneous super-majorities. As to how it has worked out in practice – I won’t take up the space on this comment page: Read the link below. Ignore the opening arguments dealing with impeachment. Most of it is a compelling argument that there is such a thing as judicial tyranny, that we suffer under it, and that it has benefited the right, not progressives over our history. There was one brief historical 20 year period when the courts may have given us more they they took. Nathan makes an overwhelming case that before and since they have been a right wing force – and net they have stopped more progressive causes than they have forwarded.
http://www.nathannewman.org/other/ImpeachSC.html
Well, that’s all well and good, but it doesn’t address what I find to be the most basic issue:
“What do you do when the congress passes a law that violates the constitution?”
If the courts aren’t the ones to decide when a law is unconstitutional, who is? Does anyone think that dropping that power into another branch of government is a really good thing?
I’m open to arguments about judicial tyranny, but if they don’t address how we combat the tyranny of the majority, they’re not really worth listening to.
—Myca
I totally hate these comment sections that don’t support html, and also don’t have an “edit” function, so that I must write down and then type in an interesting-sounding URL someone posted. OK, so maybe I am just lazy.
But they never have a good answer to who checks the power of the courts and how?
the answer to this is quite obvious. First, judges are appointed by _elected_ officials thus assuring at least some responsiveness to the feelings of the ‘people’. Second, judges can be removed, difficult, but they can be removed (and many state judges are elected). Third, if it is a lower court there is always appeal (many decisions are overturned :), and very importantly, if it is the Supreme Court there is appeal by way of constitutional amendment.
They are checked.
Eileen: >>I totally hate these comment sections that don’t support html, and also don’t have an “edit” function,
This comment section does support many html tags, including hyperlinks! You may also preview your post by clicking “preview” and then edit it, if you wish.
“I think the problem with unchecked court power has gotten a lot worse the more the constitution is viewed as a “living” document and there is no longer a need to interpret it with “original intent” in mind.”
This is a strawman. Even those who fully support the idea that the Constitution is a living document still constantly refer to original intent. They reference the early cases, they quote the Federalist Papers, and they consider what Madison, Jefferson, and the others believed.
The only difference is that they consider it foolish to IGNORE everything that has happened in the meantime.
Trey, my comments were directed at the federal courts where the real power is. As for removing them, its hard, very hard, too hard in my opinion. Read Gar’s post. I get the impression that whether the process is correct or not is a secondary concern as to whether he agrees with the outcome. As if the ends justifies the means. Probably a lot of ideologues on both sides agree with that.
Jason: “This is a strawman. Even those who fully support the idea that the Constitution is a living document still constantly refer to original intent. ”
Its not a strawman. The living document theory directly contradicts the original intent threshold. If living document types “refer” to original intent it is just to cover their asses with an after the fact justification.
I notice no one answered my questions at the end.
“Notice the words ‘compelling reason’ do not appear in [the First Amedment] at all. Notice also the words ‘Congress shall make no law’. It seems pretty final to me. However, the new interpretation allows the congress to make a law limiting the political speech because of a new found ‘compelling reason’.”
Well, it’s more complicated than that. Money isn’t speach. Speach only enters into it because regulating how people can spend money indirectly affects speach. The rule that has evolved over the last couple of hundred years is that if Congress has a compelling interest in regulating conduct, it can do so despite the indirect effects on speach.
Imagine a robbery prosecution, in which the defendant waived a gun at somebody and demanded, “Your money or your life.” That’s speach, but it’s also conduct, and the interest in preventing robberies is sufficiently compelling to justify the restraint on speach.
Now, you can rationally argue that the reasons for campaign finance reform were insufficiently compelling to justify the regulation. To say, however, that anything which indirectly affects speach is beyond the government’s power to regulate is effectively to leave the government with no power to do anything at all.
Trey, my comments were directed at the federal courts where the real power is.
However, my post and this entire discussion is taking place in a context where the accusation of “judicial tyranny” has been primarily directed at a state court (the Massachusetts supreme court).
“Original intent” is pretty meaningless, in my view. It’s pretty clear that judges like Scalia don’t give a damn about “original intent” when original intent goes against their political preferences; see, for instance, Scalia’s use of the 14th amendment to oppose affirmative action, even though the congress that framed the 14th amendment also supported affirmative-action-like policies. See also last year’s ruling on the Mickey Mouse Copyright Act, in which the very clear original intent of the founders that copyright be limited was ignored in favor of the court’s pro-business ideology.
In the end, “original intent” or not, it comes down to trying to make a coherant argument based on the text of the Constitution and on the precidents of past cases.
Suppose in 20 years they find a compelling reason to limit the freedom of the press to not criticize sitting representative during an election year. What would the recourse be? Would we just have to live with it?
What on earth would the compelling reason be?
You seem to be arguing that the Court is liable to make random, arbitrary decisions, based on nothing. However, by and large that isn’t the case; even when I think the Court decides wrongly, it’s clear to me that they don’t decide arbitrarily. Given the first amendment precidents they’re working with, it’s virtually impossible that the Court could come to the decision you describe.
If they did come to the decision you describe, the recourse would be a constitutional amendment, or the election of a president who’ll appoint judges who will overturn that decision.
“‘Original intent’ is pretty meaningless, in my view.”
It’s one of those darn logical paradoxes. When you look at the original intent of the drafters of the constitution, it’s pretty clear that they did not intend “original intent” to be the touchstone of constitutional interpretation. Otherwise, they wouldn’t have used all those vague, slippery phrases like, “due process of law,” essentially leaving their meaning to be worked out by the courts at a later date.
Regarding a law that prohibits criticism of a sitting government:
“If they did come to the decision you describe, the recourse would be a constitutional amendment, or the election of a president who’ll appoint judges who will overturn that decision.”
Here I’d disagree. If they came to such a decision, the proper recourse would be to start a second revolution.
Also, besides the copyright cases, I note that Scalia has never publicly questioned the existence of an air force. Try as you might, you’d never find anything about an air force in the Constitution. An army and a navy, yes, but if you’re going to use original intent, then you really need an amendment to create any additional branches of the military.
It’s also worth noting that the founders, who mistrusted standing armies of any kind, would most surely have regarded the air force as a non-trivial usurpation of power. If you’re going to argue that it’s trivial, you can only do so by jettisoning original intent.
“Well, it’s more complicated than that. Money isn’t speach. Speach only enters into it because regulating how people can spend money indirectly affects speach. The rule that has evolved over the last couple of hundred years is that if Congress has a compelling interest in regulating conduct, it can do so despite the indirect effects on speach.”
Its not much more complicated at all. As I said, I don’t think there was any argument that campaign contributions are protected political speech. If I want to give money politician, or a party, or a group of like minded people then it is clearly political speech. Also it is not significantly different than if I buy the materials and make a protest sign for a local protest, or buy a spot in the local newspaper. The only difference is scale.
“Also, besides the copyright cases, I note that Scalia has never publicly questioned the existence of an air force.”
As to original intent. Original intent existed long before Scalia. I think it was well understood that of course it only applies where there original intent existed. The constitution was meant to be the final authority on the limits of governmental power and that includes the federal courts. It was not meant to cover every possible permutation of common law or societies problems. The framers didn’t have any intent on automobiles, or satellite communications either. Where these permutations conflict with the final authority (the constitution) is where original intent interpretation comes in. Even though the framers didn’t envision the air force doesn’t mean the III amendment doesn’t apply.
“Amendment III: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”
Notice it is not any more definitive than the first amendment (see campaign finance reform example above). There are no exceptions allowed. No “compelling reasons” to over ride it are permitted. If an exception becomes needed in the future, then we are allowed to lawfully amend the constitution to change it.
“If they came to such a decision, the proper recourse would be to start a second revolution.”
This is where I think we are headed in the next 100 years or so.
There is judicial tyranny when the court decides something conservatives don’t like.
There is not judicial tyranny when the same court decides something conservatives like.
Case in point:
A) deciding GW Bush is president even though he lost the popular vote and quite possibly cheated to obtain the electoral vote=a good decision, thank god for the Supreme Court and people complaining that their votes went uncounted or they were turned away at the polls are sore losers.
B) deciding Bowers v Hardwick is unconstitutional is bad and usurps democratic process but just in case it was right, we better amend the Constitution.
It’s very simple. No need for debate!
“I don’t think there was any argument that campaign contributions are protected political speech. If I want to give money politician, or a party, or a group of like minded people then it is clearly political speech. Also it is not significantly different than if I buy the materials and make a protest sign for a local protest, or buy a spot in the local newspaper. The only difference is scale.”
Larry, silly, none of those things are, directly, speach. Speach is saying something, not spending money to enable you to say something. The First Amednment does not, for example, prevent the government from punishing you for bribing a politician (“If I want to give money politician, or a party, or a group of like minded people then it is clearly political speech”). Nor does the First Amendment prohibit the newspaper from suing you if your check for your ad bounces (“it is not significantly different . . . if I . . . buy a spot in the local newspaper”). Nor does income tax violate the first amendment, although clearly if the government takes your money, you won’t be able to spend as much on advocacy.
All these areas surrounding speach rather clearly involve things that we want government to be able to regulate, although very carefully, within strong limits.
I’m sorry, but I have to say that the Freespace argument is unusually poor for a huge number of reasons.
First, suggesting that the courts aren’t undemocratic because their institution was made by the people is just dumb. We vote on the President. We made the institution of the Presidency. Yet no one would be idiot enough to suggest that the office does not and cannot act in undemocratic or frankly anti-democratic ways.
Second, this quote is AWFUL Constitutional jurisprudence:
Uh, no. The court does not exist to put a general check on the majority. It is only empowered to check the majority when it violates Constitutional grounds. This is a hugely important distinction, because so many people in this argument act as if they believe the court is a general check. It isn’t. And that is why there has to be a useful understanding of what the Constitution says–which some judges on both the right and left resist. A more useful way of looking at it would be to say that judges are intended to act as a check on current majorities when they violate the super-majority system as codified in the Constitution. They are voices of the historical super-majority–but that is grounded in history. That is why they are not empowered to make the sweeping social changes that progressives want from them.
The idea that Constitutional amendment is the propoer recourse to bad judging is ludicrous. If we are going to pull out the stops you might want to try impeachment first.
“However, by and large that isn’t the case; even when I think the Court decides wrongly, it’s clear to me that they don’t decide arbitrarily.”
Heh, see liberal hero Brennan’s positively ridiculous argument that the Constitution outlaws capital punishment despite the fact that it specifically lays out a procedure for trying capital crimes.
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Yet no one would be idiot enough to suggest that the office does not and cannot act in undemocratic or frankly anti-democratic ways.
For the comparison to be accurate, people would have to be accusing the president of “executive tyranny” any time the president made a decision that went against any right-wing preference.
The court does not exist to put a general check on the majority. It is only empowered to check the majority when it violates Constitutional grounds.
Hence the phrase “regardless of the Constitution” in the paragraph you just quoted. I guess if you were determined to bend over backwards to read the piece unfairly, you can claim that the piece was claiming that the courts don’t have to base their decisions on the Constitution; but that’s not what any even marginally fair-minded reader would assume.
A more useful way of looking at it would be to say that judges are intended to act as a check on current majorities when they violate the super-majority system as codified in the Constitution. They are voices of the historical super-majority–but that is grounded in history.
You’re right, that is well-put.
That is why they are not empowered to make the sweeping social changes that progressives want from them.
Going back to the example I had in mind when I put up this post (same-sex marriage), they’re only “not grounded” to rule in favor of SSM if you assume that the 14th amendment doesn’t apply to homosexuals – and that it doesn’t apply to sex discrimination. I don’t think either of those assumptions are true.
The idea that Constitutional amendment is the propoer recourse to bad judging is ludicrous.
Well, if Sebastian says it’s ludicrous, then of course it is. Please don’t bother yourself making arguments or providing any logic in support of your statement.
The statement that the earth is flat is also ludicrous and I don’t feel the need to cite anything to prove it.
But suggesting that the best way to deal with judges who go beyond their Constitutional power is to amend the Constitution is to miss the point. If a Brennan is willing to ignore the text of the Constitution to find that all capital punishment is outlawed, amendments aren’t going to help because Brennan is already ignoring the text that he wants to ignore. Furthermore such a process inverts the entire structure of the country. The judges are supposed to preserve the meaning of the Constitution. They protect the Constitution against changes from the present. That is why I said this:
But that doesn’t make judges a progressive force. It makes them the most conservative of the branches. (And I mean that in a resistant to change way, not in a Democrats vs. Conservatives way). Broadly speaking legislatures make changes, administrations implement them, judges make sure the changes and implementations don’t go beyond the historical allowances of the Constitution. The Constitution itself may be changed by the difficult amendment process.
Judicial tyranny is when judges try to make the changes. The aren’t empowered to do that. They are empowered to resist the changes of the legislature and executive and only that when the other two cross the Constitutional boundaries.
That is why I don’t think you agree with my formulation, even though you claim to. You want change to come from the court system. It is also why the amendment process is a stupid way to correct judicial error. If Brennan can dictate that the Constitution outlaws capital punishment when it specifically gives a process for capital trials, the remedy isn’t to change the Constitution. It is already clear. Brennan is finding ambiguity specificially to thwart the text. He is going beyond his authorized power in protecting the meaning of the Constitution against assault by the other branches. Instead he is attempting to make a change which he wishes was in the Constitution. He wants to change the meaning without bothering with the amendment process.
And no Jason, this has nothing to do with changes in technology or unforseen circumstances. This has to do with completely forseen circumstances. In my example above, the Constitution specifically contemplates capital punishment.
Sebastian, Brennan didn’t get to “dictate” that the Constitution outlaws capital punishment — he just got to issue a bunch of very lonely dissenting opinions in which he said that capital punishment should be ruled unconstitutional. Being relegated to the role of permanent dissenter on that issue is a far cry from getting to “dictate” anything.
No, it was quite indicative of his judicial philosophy. He wasn’t the dissent in all the controversial cases.
Let’s see if I can sort things out a bit, because I fear I’ve been misquoted…
1. I never said anything about capital punishment. It’s clear that capital punishment IS authorized in the constitution, and thus it remains constitutional.
2. I maintain that the air force does not lie in the original intent of the Constitution. I find the mention of amendment III as justification for the air force to be even weaker than the liberal jurisprudence that the above poster decried.
3. For the record, you also misunderstand the doctrine of “compelling reasons.” These are not merely reasons that we happen to feel strongly about; instead, these are things such as the famous example of shouting “Fire!” in a crowded theater when no fire exists. There is a compelling reason to prohibit such speech, as generation after generation of judges has found. It lies not in their partisanship–because liberals and conservatives alike have agreed on this point–but rather in the simple fact that the freedom of speech must not be used falsely and needlessly to injure others. In other words, the First Amendment is not a suicide pact.
And if that is what we were talking about we wouldn’t be discussing judicial tyranny.
Sebastian H:
Judicial tyranny is when judges try to make the changes.
Okay, how may we tell when a judge is “trying to make changes” rather than uphold the Constitution, or perform some other legitimate judicial function? What test do you propose to distinguish between these two cases?
I’ve probably asked Sebastian this question ten times over the past couple of years, and no answer has ever been forthcoming other than some variation of the claim that a judicial ruling is legitimate when he, Sebastian, thinks it is, and illegitimate otherwise. In other words, he has no test to offer other than his subjective personal opinion.
No, I’m the one with anything resembling a test Don P. You are the one who says that anything 5 justices agree on is ok with you.
You look at the text. If and only if there is ambiguity and if and only if that ambiguity is important to the case at hand, you look at other case law to guide you about the meaning of a passage. Or you look into the legislative history. But normally you use the regular meaning of the phrases to be interpreted AS THEY WERE UNDERSTOOD AT THE TIME THEY WERE PASSED INTO LAW. You also look at normal context. For instance, contra the jurisprudence style of Brennan, if the Constitution provides a method for a capital trial, it can be logically inferred that the ‘cruel and unusual’ clause does not ban all forms of capital punishment.
Your turn. How do you know when, let us say Scalia, is wrong when he votes with the majority of the Court?
I’m baffled by comments like Larry’s that the courts are somehow immune from democratic control.
Federal judges are nominated by the president and approved by the Senate — both elected branches of government. That’s control by a democratic and Constitutional process: open and shut case.
What Larry and others who object to the “undemocratic” powers of judges object to is the time-frame: the Constitution insulates the courts from short-term political shifts and opinions by providing for lifetime appointment of judges, while providing for ongoing control over the makeup of the judiciary through the appointment process. This is a carefully thought-through balance, here, not some seizure of power by the judges.
As for judges ignoring “original intent”: there’s a much deeper problem of interpretation in general here. Of course, texts like the First Amendment (“Congress shall make no law…”) are indeed clear and unambiguous, and have been ignored by the Congress, the Presidents and the Courts from day one. We place great faith in the “clear and obvious” meaning of texts like this, but history makes it pretty clear that words — no matter how clear they may be — simply cannot do this kind of work in human societies. To mention another example: the 5th (6th) commandment of the Ten seems pretty clear and unambiguous, too, in the form it authoritatively takes for most Christian denominations with an English bible: “Thou shalt not kill”. It doesn’t say “…unless you are a soldier”, it doesn’t say “…except in self-defense”, or anything else. Yet with a few brave but not very influential exceptions, every Christian orthodoxy has endorsed killing in all sorts of situations. Most contemporary Christian conservatives are enthusiastic proponents of the death penalty — so much for “Thou shalt not kill” — and call for the suppression of pornography — so much for “Congress shall pass no law…” — yet scream about judges ignoring the “original intent” of the Constitution.
I wish that we _could_ use texts with clear statements of principle to guide and shape laws and public policy the way Larry et al. wish, but the record is NOT promising. Interpretation, just like legislation and Constitution-writing, is ultimately a political process that responds to political pressures and power. That said, the establishment of ‘clear principles’ IS a useful constraint on pure majoritarianism, and “traditions of interpretation” (known by various names) do construct useful constraints on legislators and executives alike. They’re a good instrument, but not the transparent and definitive one that Larry would like them to be.
But this is an old and ongoing debate, and I’ve said nothing new, I know…
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With all this talk of “judicial tyranny,” everyone seems to be forgetting that the courts have no means of their own by which they may enforce their judgments. This is a glaring omission. After all, when it came to the forcible removal of the Cherokees, Andrew Jackson wasn’t fazed one bit by the fact that the U.S. Supreme Court told him he had no right to do it. Nor are modern executives and legislatures necessarily daunted by the pronouncements of higher courts. Here in the lovely state of Ohio, for example, our state supreme court has held, not once but FOUR times, that our school funding system is unconstitutional. Each time, Ohio’s General Assembly has responded by, in essence, flipping the court off.
Also, like a few other people who’ve posted, I’m baffled by claims that the courts are immune from democratic control. The express controls on the federal bench have already been mentioned (impeachment being the most obvious). Other “democratic” methods of control exist as well– among them, FDR’s court-packing threat was probably the thermonuclear option, but other methods are easily imagined. And there’s also the judicial selection process, which is a quintessentially political (and thus, ultimately, democratic) process. This is certainly the case with the Federal appointment process. It is even more obviously the case in those states where judges are selected by popular vote.
Sebastian H:
You look at the text. If and only if there is ambiguity and if and only if that ambiguity is important to the case at hand, you look at other case law to guide you about the meaning of a passage. Or you look into the legislative history.
Rulings that you claim to be examples of “judicial tyranny” involve all of those steps. And your description above is not any kind of serious test, anyway. How does “looking at the text” or “looking into the legislative history” tell us what kinds of liberty are protected by the 14th Amendment? Or whether a particular kind of punishment is “cruel and unusual?” Or whether a particular kind of search or seizure is “unreasonable?”
And your appeal to case law is a circular argument. You cannot identify instances of judicial tyranny by looking at prior cases without first determining whether those cases are themselves instances of judicial tyranny.
But normally you use the regular meaning of the phrases to be interpreted AS THEY WERE UNDERSTOOD AT THE TIME THEY WERE PASSED INTO LAW. You also look at normal context.
We don’t know how they were interpreted at the time. And interpreted by whom?
For instance, contra the jurisprudence style of Brennan, if the Constitution provides a method for a capital trial, it can be logically inferred that the ‘cruel and unusual’ clause does not ban all forms of capital punishment.
No it can’t. The conditions under which capital punishment is constitutional may have been met at one time, but that does not mean they are met today. The very use of the word “unusual” in the 8th Amendment expresses the principle that constitutional questions are subject to conditions that may change over time. As capital punishment becomes increasingly unusual, the argument that it is unconstitutional on 8th Amendment grounds alone becomes increasingly strong.
Your turn. How do you know when, let us say Scalia, is wrong when he votes with the majority of the Court?
I don’t “know” when he is wrong.
OK. Don has taken the position that you can’t know when a justice takes a wrong position. Anyone else want to sign up with that?
Sebastian:
If you claim to know when he is wrong, how do you know that? I’m talking about knowledge here, not mere belief.
We can say that a justice’s position is discriminatory, or biased, or whatever, but not “wrong.” Sebastian, you’ll have to take the word out of the abstract and into the concrete–do you mean wrong morally, or wrong based on the Constitution, or wrong as it’s judged by a majority of Americans?–in order for your point to make sense.
Ok, I’ll be more precise even though I think you are creating ambiguity out of a quite clear statement–Don P. is suggesting that a judge in the majority of a Supreme Court opinion cannot be Constitutionally wrong, or at the very least that we aren’t capable of knowing that they are wrong. Are you willing to sign off on that Hestia?
Reserving general philosophical objections to ‘knowing’ anything, I suggest that we can know a judge is interpreting something incorrectly as well as we can know almost anything having to do with human beings. Don P. says we can’t know. Why bother ever arguing with the Supreme Court then? They have ruled, so mote it be.
Sebastian:
Ok, I’ll be more precise even though I think you are creating ambiguity out of a quite clear statement–Don P. is suggesting that a judge in the majority of a Supreme Court opinion cannot be Constitutionally wrong, or at the very least that we aren’t capable of knowing that they are wrong.
Right. The Constitution means what the judiciary, and ultimately what a plurality of the nine justices of the Supreme Court, says it means. That is the ultimate test of whether a law is constitutional. There is no other.
I’d say you can argue a justice is wrong if they misstate existing law, or base a decision on a clear misstatement of existing law. I don’t mean “misinterpretation.” But if a SCOTUS opinion says “The First Amendment reads ‘Congress shall make only some laws…'” then you can pretty much say they’re wrong.
Sebastian:
Reserving general philosophical objections to ‘knowing’ anything, I suggest that we can know a judge is interpreting something incorrectly as well as we can know almost anything having to do with human beings. Don P. says we can’t know.
There are obviously lots of factual claims about human beings that we can test rigorously using science and reason. But we can’t test interpretations of the Constitution in that way. You simply can’t claim that it’s “wrong” or “incorrect,” for example, to argue that the constitutional guarantee of individual liberty encompasses the right to abortion. The meaning of the Constitution is a matter of subjective judgement, not objective fact.
Why bother ever arguing with the Supreme Court then?
To persuade it to adopt the interpretation you favor.
Just to follow up on my point. I think the courts are an undemocratic institution, not merely a guardian of minorities against majorities acting against the constitution, but a tool of the rich and powerful who will occassionally protect other minorities as a side effect but are mostly oppressor not protectors. Look at Gore vs. Bush. Since the Warren court we have had a lot more reactionary decsions from the court than progressive ones. And prior to Warren; it was the supreme court who made many of the rulings that upheld slavery – including the Dredd Scott decision. It was the courts who granted corporations personhood, while stripping away most of the protections black people gained in the post civil war constintuional amendments. It was the courts who constantly ruled against labor, and granted injunctions against strikes.
OK as to the Democratic checks against the court. Bear in mind that the courts are not the only undemocratic system. We have the U.S. Senate where Rhode Island has the same number of Senators as NY State. And we have the presidency chosen by the extgremely undemocratic electoral college. And the supreme court is chosen by the President and the Senate! The representatives, the most democratic branch (though completely corrupted by money) have no say over the Supreme Court composition.
The democratic parts of our government are the weakest part – and deliberately designed to be so to check “the great beast” the people.
Our government is not designed to have a powerful majority rule with some checks to preserver minority rights. It is designed to keep minority rule in place, with some safety valves for the majority so that if they get pissed enough to actually be on the verge of a revolution, they have an alternate way to get their view across. In short it was designed so that the rich and powerful can have their way routinely and on a day to day basis, and the majority have their way occasionally and with great overwhelming effort. Criticism of the Supreme court should probably be in context with critiques of our constitution as a whole – designed to keep the majority as powerless as possible.
“critiques of our constitution as a whole – designed to keep the majority as powerless as possible.”
Except that isn’t how it was designed. You can argue that is how it works now, but it wasn’t designed to make the majority as powerless as possible. It was designed to check the power of the majority only in certain specific areas.
Is no one agreeing with Don? Can you know when a Supreme Court justice is wrong even if he is in a 5 justice majority on a case.
Can you know when a Supreme Court justice is wrong even if he is in a 5 justice majority on a case.
Is this a semantic debate? You can sincerely believe the Supreme Court’s interpretation is incorrect and argue as such. You can likely convince others they are incorrect. You can likey convince a new court the old one was incorrect.
My impression is Don J is distinguishing between either knowledge and belief or possibly between the current reading of the law, and “absolute truth”.
The Supreme Court currently decides has the final interpretation on what’s correct. It’s sort of like the umpire in baseball.
Of course, if the fans get totally disgruntled, they could storm the field. They generally do other things –like argue about the call on blogs.
Sebastian:
Is no one agreeing with Don?
No, apparently, everyone is agreeing with me. You are the only person here who claims to “know” that an interpretation of the Constitution is “wrong.”
I’m still waiting for you to explain how can “know” this. How can you “know,” for example, that the court was “wrong” to find that the Constitution protects the right to abortion? Answer the question.
Sebastian wrote: The statement that the earth is flat is also ludicrous and I don’t feel the need to cite anything to prove it.
Sigh… Okay, either you think I’m such an idiot that I’m the equivilent of a flat-earther. If that’s the case, I think you should stop posting on my website. Or you think I’m not THAT great an idiot, in which case maybe you could try treating disagreeing opinions in a less condesending manner.
But suggesting that the best way to deal with judges who go beyond their Constitutional power is to amend the Constitution is to miss the point.
I didn’t say it was the best way; I said it was one way (I also mentioned another, appointing different judges). Although I don’t know about “go[ing] beyond their Constitutional power,” I do know that Amendments have been used to overturn S.C. decisions several times (the 11th, 13th, 14th, 16th, and 26th amendments, according to Terry Eastland in the Weekly Standard).
Don is, for all practical purposes, quite right. There are times that I believe the Supreme Court has decided wrongly, but I cannot prove this as a fact; I can merely provide an argument as to why I think they are wrong.
(Hypothetically, I can imagine cases in which the Supreme Court would be objectively wrong: for instance, if they issued a finding of fact declaring that the Earth is flat. But it’s unlikely that any such case would happen in the real world.)
When someone says that they think a case was “wrongly decided” what they generally mean is that they disagree with the court’s understanding of the law. This is quite different from the assertion that a claim of fact is “wrong.” Of course, legal decisions rest in part on factual findings, and it is certainly possible to believe that certain cases are “wrongly decided” on purely factual grounds, but that obviously does not apply to rulings that rest on an interpretation of words like “liberty” or “equal protection” or “cruel and unusual” or “unreasonable” in the Constitution. The meaning of these terms is simply not a factual question, it’s a matter of interpretation and judgment.
Suppose in 20 years they find a compelling reason to limit the freedom of the press to not criticize sitting representative during an election year. What would the recourse be? Would we just have to live with it
I just lost such a case in the 7th circuit. http://majors.blogspot.com. McConnell v. FEC was such a case, in limited respects. If you write “vote against smith” in Indiana, you can go to jail. In my case, I may just give up, I may find ways to continue to litigate in other cases raising the issue, I may go back to the legislature to ask that the statute be repealed, I will probably refrain from global thermonuclear war.
The system as designed had numerous checks and balances – jury nullication, dual state and federal bills of rights, government officals sworn to uphold the constitution, citizen militias sworn to protect the constitutions from domestic enemies, a semi-free press to report and debate, encrypted mail, town meetings, and so on. Too often,we have continued to vote for crooks after they betray their oaths. Too often we have failed to even read the state bills of rights which are our heritage of liberty. Too often, we have waived our rights, our right to remain silent, our right to get loud, our right to a jury trial, our right to a free and anonymous press, our right to bear arms, our right to be free of compulsory education and involuntary servitude, our right to shout theatre in a crowded fire. Our creator, the goddess, gave us these rights, and we threw them away. I am the mad fool who shouts these things, john young does it better.
It looks like arbitrary is off his meds again.
Don, that was totally out of line. You’ve been posting on “Alas” long enough to know better.
Oh good heavens the distinction between ‘wrong’ and ‘you believe is wrongly decided’ is a distinction completely without a difference. It is like complaining that I refer to ‘green’ when of course I am really talking about ‘the wavelength of light which is identified by people who use the English language using the word ‘green’ to denote a range of wavelengths of approximately X’.
Ok, when looking at a decision by a Supreme Court majority, on what basis can you disagree with them? In other words what things would you look at to decide if their interpretation ought to be believed to be correct by people who are not sitting on the court at the time of the decision.
And I’ll note that in my opinion, the question was semantically clearer to any non-philosophy major in the initial form and that the discursion into the nature of the word ‘know’ was a dodge which added very little if anything to anyone’s understanding of the issue of jurisprudence.
And since we are talking about theories of jurisprudence (which we are since the concept of judicial tyranny is a concept of judges going beyond their proper role in interpretation) the grounds ought to be other than “I don’t like the policy”.
Sebastian:
Ok, when looking at a decision by a Supreme Court majority, on what basis can you disagree with them? In other words what things would you look at to decide if their interpretation ought to be believed to be correct by people who are not sitting on the court at the time of the decision.
Culture, history, precedent, social norms, etc.
We’re still waiting for you to explain how you know that the Constitution does not protect the right to abortion, or how you know that any other ruling you disagree with is wrong. You can’t evade the question forever.
Sebastian:
And since we are talking about theories of jurisprudence (which we are since the concept of judicial tyranny is a concept of judges going beyond their proper role in interpretation) the grounds ought to be other than “I don’t like the policy”.
And the grounds for declaring a ruling to be “judicial tyranny” must be something other than “I disagree with the interpretation.” So what are they?
Probably beating a dead horse since I havent had a chance to respond in a few days, but..
Jason Kuznicki: “2. I maintain that the air force does not lie in the original intent of the Constitution. I find the mention of amendment III as justification for the air force to be even weaker than the liberal jurisprudence that the above poster decried.”
Ok, I thought my point was obvious, but I will try it again a little slower so no intellectual leaps are required.
“Amendment III: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”
The “original intent” of the 3rd amendment has to do with military personnel taking up residence in peoples houses. Therefore, even though the founders didn’t envision an air force doesn’t mean an air force pilot (who is not a “soldier” in the strictest definition) operates outside the amendment.
PQuincy: “To mention another example: the 5th (6th) commandment of the Ten seems pretty clear and unambiguous, too, in the form it authoritatively takes for most Christian denominations with an English bible: “Thou shalt not kill”. …yet scream about judges ignoring the “original intent” of the Constitution.”
Nice strawman. If we scrapped our constitution and adopted the bible you would have a point.
PQuincy: “They’re a good instrument, but not the transparent and definitive one that Larry would like them to be.”
A good instrument? Some kind of vague guideline? If the constitution isn’t THE final authority then what is? Is our system built on a foundation of sand?
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