David Blankenhorn objects to the Massachusetts Supreme Court’s “hardly disguised contempt for the views of most citizens of the commonwealth.” He feels that the Court has displayed a ” wanton disregard for democratic procedures.” This is a pretty common statement among opponents of same-sex marriage (SSM), which leads me to wonder: what do they think the proper role of the courts should be, in regards to individual constitutional rights?
David seems to think that it’s wrong for a court to go against majority opinion, or the legislature, on matters of individual rights. But this is bewildering. Surely David wouldn’t actually require the Court to take polls of the populace and then base their opinions of what the Constitution means solely on what the majority would prefer. But assuming that David doesn’t favor poll-driven court decisions, why exactly does he want the court to do when their good-faith interpretation of the constitution disagrees with popular sentiment?
I tend to agree more with Trivial Pursuits, who writes:
Judges, if they are doing their jobs, IMO, are the watchguards, the curbs against tyranny of the majority.
It the judiciary is required to go along with whatever the legislature and the polls say, then I don’t see the point in having a judiciary at all. Or in having a bill of rights, for that matter. Who needs a first amendment? Next time a free-speech controversy comes up, we’ll just take a poll.
* * *
David also sees democracy at peril in San Francisco:
But the case isn’t as simple as David describes. The Mayor has argued that two California laws – the constitutional call for equal protection, and the statute defining marriage – are contradictory. Since he perceives a contradiction, the Mayor must “pick and choose which law to enforce”; it’s not possible to enforce both laws at once. Under such circumstances, it’s perfectly reasonable for the Mayor to decide that his duty is to obey the Constitution, first and foremost. (See Eugene Volokh for a more developed version of this argument).
(Suppose that, on Election Day morning, the legislature voted to deny blacks the right to vote. During the several hours it might take to get the judicial bureaucracy into motion to stay or repeal the new law, thousands of blacks would be turned away from the polls, potentially changing the election’s outcome. In that situation, does David believe that the Mayor is bound to obey the legislature, or should he instead obey the constitution?)
If the mayor felt that state anti-gun laws violated the state constitution, then he would have been perfectly within his rights to create a test case by refusing to obey the (in his view) unconstitutional law. He could also arrest doctors, although in that case the judiciary – seeing a clear and immediate harm – would step in and stop him much, much sooner.
Or perhaps they are interpreting the law in good faith as they see it..
Things to point out to such people:
(1) Basic rights for minorities should not be subject to majority rule.
(2) The majority of Americans opposed interracial marriages before Loving v. Virginia. Court rulings often precede public opinion shifts, rather than bending based upon them. That’s one of the reasons we have a non-elected judiciary.
You are so right about the reasons for having a judiciary. There is a reason that it is seperate from the legislative & executive branches. It is there to interpret according to precedent & so on. Not to reflect the tastes of the masses.
“Judges, if they are doing their jobs, IMO, are the watchguards, the curbs against tyranny of the majority.”
I am curious though, who is watching the watchers? Surely the founders didn’t intend for us to be a judicial oligarchy. If they can see anything they want in the constitution, then to me at least they have way too much power to be unaccountable to the public. If judges can interpret the constitution without regard to initial intent, then what limits their power?
Larry – their power is limited by the legislature and public’s ability to either create new statutes or (if necessary) amend the constitution.
Or to elect new judges.
Amp,
Thanks for the ping. As for Larry’s good question, I agree with both Ampersand and Tara.
It is much, much easier (but not necessarily easy) to correct perceived judicial error through majoritarian process than it is to correct perceived majoritarian abuse through majoritarian process. In fact, as I argue on TP, I think it is exceedingly unwise to rely on majoritarian process to correct for tyranny of the majority.
Maybe it’s just me. Maybe I went to the way-by-far-bestest-of-them-all public schools in the whole country. But I am astounded every time I see a question like the one that Larry posted here.
Starting in elementary school and going all the way through to high school we learned about the US form of government. And the phrase I remember hearing over and over is “checks and balances”. We got a lot about the 3 branches of government (those being Executive, Legislative & Judicial) existing for the purposes of providing aforementioned checks & balances. So that nobody could wind up with absolute power.
I’m just curious whether any of you had even remotely the same public school experience in this regard.
Jake Squid: “Maybe it’s just me. Maybe I went to the way-by-far-bestest-of-them-all public schools in the whole country. But I am astounded every time I see a question like the one that Larry posted here.”
I was looking for some mature informed opinions of judicial power from liberals, not some sophomoric recitation of a grade school flash card.
Tara: “Or to elect new judges.”
My question was mainly about federal judges where in lies most judicial power.
Ampersand: “Larry – their power is limited by the legislature and public’s ability to either create new statutes or (if necessary) amend the constitution.”
Judges can simply declare the new statutes unconstitutional. Look at how many state wide initiatives are passed by the majority of voters in certain states and then summarily thrown out by Judges. Read the USSC’s opinion of the of the campaign finance reform decision where they basically over wrote the 1st amendment. There are many examples of Judicial over reach of power but I can’t think of a way to balance that power other than impeachment, or amendment.
Jake, I think your comment is unfairly dismissive of Larry’s question. In light of Amp’s post, it seems entirely reasonable to solicit his views on that question. His post, after all, lays out arguments (perfectly reasonable ones, IMHO) in favor of judicial authority, but he doesn’t discuss checks and balances upon judicial power. It doesn’t strike me as absurd to ask a follow-up question as to those checks and balances. And Amp’s comment to his post (again quite reasonably, IMO) indicates that there may indeed be some circumstances where a role for majoritarian authority in constraining the judiciary should be recognized. These are an enormously complicated set of issues about law and the structure of government.
Larry’s response is perhaps a bit crabby, but you did poke him first. :-)
Your right, I was probably a little too crabby. I know how a lot of conservatives think about judical power, I am curious to hear a few liberal opinions.
Perhaps I was too quick to jump on that. It’s just that it is an all too common question. Never with any reference to the balance between the 3 branches of gov. I would like to know Larry’s views on the role of the judiciary & how (if this is really what you mean) judges are supposed to know the will of the majority in all cases? And what purpose does it serve if it is just supposed to enforce the will/interpretation of the majority?
Anyhow, it is my belief – reinforced by my k-12 education – that it is the Judiciary’s job to interpret law & consitutional questions according to their understanding of the constitution and prior precedents. It is the Legislative branch’s responsibility to enact laws and begin the process of any constitutional ammendment. The Executive branch appoints many (if not all) of the non-elected bench positions.
Oh, and Larry wrote: “My question was mainly about federal judges where in lies most judicial power.”
I think that this is where the Executive branch exerts it’s power. The Executive branch appoints those federal judges. If a judges history is not compatible w/ the constitutional views of the current admin, that judge will not be appointed to interperet the laws & constitution.
Please correct me if I have misunderstood or mis-stated the nature of the 3 branches. And I really would like to read your answers to the questions I posed.
Larry,
It’s interesting that you point to the Supreme Court decision on campaing finance reform. That was a case where the Supreme Court upheld a statute passed by Congress, signed by the President, and quite popular with the people. In that case you’re accusing them of judicial inactivism. The poor court can’t catch a break.
If the people disagree with a court decision because they feel the court misinterpreted a statute, they can pass a new statute to make their intention clearer. If the people disagree with a court decision because they feel the court misinterpreted the Constitution, they can amend the Constitution to clarify its intention.
I think you’re absolutely right about the role of the judciary – it’s precisely the reason why judges (the most powerful ones, anyway) aren’t elected – so that they don’t have to worry about what the people want at the moment, and can instead interpret the Constitution as best they can.
It’s the same reason that teachers have tenure – so they can risk being unpopular in the service of intellectual freedom.
And yes, they are subject to the will of the people – if they really don’t like what the judges are doing, they can force a new interpretation on them by altering the document they’re interpreting.
Also we should note that even in the Supreme Court there are nine justices, so no single judge can hold too much sway. Sure there will be evil judges from time to time, but that’s countered really by having a lot of judges and hoping that most will approach their jobs in good faith.
The major problem I have with Larry, though, is his comment on initial intention of the framers. But that’s not how the Constitution should be, it should be a fluid, not rigid, document, which is why it’s still useful today. Yes, this is elementary school civics here, but it’s elementary school civics because it is the principle guiding philosophy behind our Constitutional Democracy.
Jake Squid: “Anyhow, it is my belief – reinforced by my k-12 education – that it is the Judiciary’s job to interpret law & consitutional questions according to their understanding of the constitution and prior precedents. It is the Legislative branch’s responsibility to enact laws and begin the process of any constitutional amendment. The Executive branch appoints many (if not all) of the non-elected bench positions.”
Yes this is the basic definition of how things work, the questions of limited power lie at the extremes. They are differences are usually of degree rather than of kind.
Jake Squid: “Never with any reference to the balance between the 3 branches of gov. I would like to know Larry’s views on the role of the judiciary & how (if this is really what you mean) judges are supposed to know the will of the majority in all cases? And what purpose does it serve if it is just supposed to enforce the will/interpretation of the majority?”
No, I don’t think judges should base their decisions on polls, but I think it should be rare and damned difficult overturn the will of the majority. The legislature (the will of the people) is a co-equal branch of the government and therefore should be respected as such.
Gabriel: “It’s interesting that you point to the Supreme Court decision on campaing finance reform. That was a case where the Supreme Court upheld a statute passed by Congress, signed by the President, and quite popular with the people. In that case you’re accusing them of judicial inactivism. ”
Yes this case is interesting. Many people believe that it passed the congress and president signed it as a matter of political expedience thinking the courts would fix the 1st amendment problems by striking down part of the legislation that limited free speech. It was machiavellian politics at its worst and I blame the congress and president as much as I do the USSC.
Raznor: “The major problem I have with Larry, though, is his comment on initial intention of the framers. But that’s not how the Constitution should be, it should be a fluid, not rigid, document, which is why it’s still useful today.”
Here is the problem, it is only a recent development that the constitution was considered “living”; the standard for most of our history was original intent. The constitution was not meant to be “fluid.” We have ONE constitutional way to change the constitution, it is called the amendment. Changing the meaning of the constitution by interpretation IS changing the constitution, and thus I believe unconstitutional. If something can mean anything, then it really means nothing. Our constitution was written to limit governmental power over the people. If that limit exists only by the whims of a few unelected people of the high courts, then I believe we are in a slow spiral to tyranny.
Correct me if I’m wrong: No judge can overturn a Constitutional amendment. Which means, from what I understand, if the FMA passes, the only recourse SSM supporters have is to petition the legislature to amend the amendment (like they did with prohibition).
It seems to me that it should be extremely “rare and damned difficult” to amend the Constitution rather than interpret it.
Changing the meaning of the constitution by interpretation IS changing the constitution
No, it isn’t. The Constitution doesn’t change except by amendment, and any challenge to it must be judged in the light of the text itself, not its interpretations. Sometimes there are precedents that indicate a past interpretation, but they aren’t required for any particular judgement. Judges, from what I know, like to be consistent, but there’s a lot of room for nuance.
Majority rule needs to be checked sometimes, and the only way to do that is to have a judiciary composed of fewer people than the majority. We hope that judges let reason, logic, and fact form their decisions rather than emotion, bias, or opinion.
Thanks for answering my questions Larry. I have a much better understanding of what you are trying to say now (I think).
I do have a question about one more thing. You say, “No, I don’t think judges should base their decisions on polls, but I think it should be rare and damned difficult overturn the will of the majority. The legislature (the will of the people) is a co-equal branch of the government and therefore should be respected as such.”
As I understand it, judges are sometimes required to interpret laws on a constitutional basis. The intent of the majority (as represented by the law written by the legislature) may or may not be constitutional. So, for example, although the majority of voters in OR voted for a term limits measure the OR Supremes overturned the law because it was not constitutional. That is the law was a breach of the constitution (whether passed by popular vote or the legislature doesn’t really matter) as the judges understand the constitution. Are you saying that they should have left it be because it was clearly the will of the majority?
Obviously I disagree at some basic level with you. I’m trying to find where exactly that disagreement is.
Larry,
First of all, I think it’s pretty unlikely that the framers intended the First Amendment to apply to broadcast advertisements seeing as there was no broacast TV at the time. They certainly didn’t intend it to cover campaign contributions. Still, suppose we could figure out that they would have intended it to apply to these matters.
What was the orignial intent of the equal protection clause? It’s pretty clear that it was not intended to outlaw segregation or to prohibit using race as a factor in the laws. As those things continued for almost a hundred years after it was ratified, and the court upheld such laws without fierce objection. I take it then that you are outraged by such decisions as Brown v. Board of Education, (prohibiting segregation in public education) Loving v. Virginia (prohibiting bans on interracial marriage), and Gratz v. Bollinger (prohibiting certain affirmative action programs). You would also, I’m guessing find it appalling for the court to demand equal opportunities for women to practice law.
You have one view of the Constitution. I believe the Constitution has to be interpreted by applying the principles (as understood by intent and subsequent decisions) to today’s circumstances.
Gabriel: “First of all, I think it’s pretty unlikely that the framers intended the First Amendment to apply to broadcast advertisements seeing as there was no broacast TV at the time. They certainly didn’t intend it to cover campaign contributions. Still, suppose we could figure out that they would have intended it to apply to these matters.”
What they intended is the protection of political speech. Just because we have technology today that they didn’t have back then is irrelevant. Here is 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 it doesn’t say: “Congress shall make no law unless a compelling reason is found.” It says “Congress shall make no law”. No law. None. Zero. Nada. The only room for nuance is are political commercials political speech? I think its clear they are. If I want to take up a collection on my city block and buy commercial time to tell the public that we think so and so is a dishonest jerk 10 days before an election I can’t do it now. It is a law abridging the freedom of speech, and thus should be unconstitutional.
Hestia: ” ‘Changing the meaning of the constitution by interpretation IS changing the constitution’ No, it isn’t. The Constitution doesn’t change except by amendment, and any challenge to it must be judged in the light of the text itself, not its interpretations.”
What is the difference? If the constitution means something one day and something else the next day via a new interpretation, then the constitution has effectively changed without amendment due to the new ruling being the new precedent.
Larry,
The amendment says “Free Speech”. The framers meant the right to stand up on a soap box in the town square and give a speech, which anyone could do. It is certainly not clear they intended this to cover paid commercials which not everybody can afford. I’m not saying yours is not a valid interpretation, but one must still interpret and try to figure out what the principle of the amendment is to try to apply it to a new unforseen situation of expensive broadcast media which is only availble to those with money.
The Massachusetts Constitution guarantees that “Equality under the law shall not be denied or abridged because of sex.” It does not say except when it comes to marriage. It does not say it’s OK so long as men and women are each restricted in a similar fashion. Julie Goodridge was not treated equally as a man would have been had he wanted to marry Hillary Goodridge because of her sex. In your mind, it seems it wouldn’t even matter if the state had a compelling reason to prevent them from marrying. After all, the clause doesn’t say “unless there’s a good reason for doing so”.
I’m curious. Do you think Brown v. Board of Education was a terrible decision? What about Loving v. Virginia?
Larry,
I think the major problem with your view on the Constitution is the fact that it still needs to be interpreted. Otherwise, it’s just a bunch of useless words on old paper. The point of having a judiciary is so that there will be an official interpretation, one that’s measured by precedent and rational thought, as opposed to a mass interpretation, which is subject to change much more rapidly than what a Judiciary can do.
If the constitution means something one day and something else the next day via a new interpretation, then the constitution has effectively changed without amendment due to the new ruling being the new precedent.
Interpretations do not change the original text of the Constitution in any way, shape, or form. They create precedents. They do not change the Constitution. Only amendments change the Constitution. Interpretations do not. Challenges to laws must be measured against the original text of the Constitution and its amendments, not precedents or other interpretations, although those precedents and interpretations may influence (but not force) a particular decision. It’s up to the judge whether to consider or ignore precedents and other interpretations, but the judge must always consider the original text of the Constitution, which has not been changed by precedents and other interpretations in any way.
If I want to take up a collection on my city block and buy commercial time to tell the public that we think so and so is a dishonest jerk 10 days before an election I can’t do it now.
Freedom of speech does not protect your right to speak anywhere and in any form. You cannot yell “Fire!” in a crowded theater. You cannot come into my house in order to tell me about your day. You cannot push the President out of the way during a State of the Union speech and start talking about “Sex and the City.” You have the right to call Candidate X a jerk, but you do not have the right to call him a jerk on TV if TV companies will not let you. You have the right to speak, but you do not have the right to commercial airtime. (If that were the case, the media would be required to provide commercial airtime for free, since charging money infringes on the rights of those who can’t afford it but still have something to say.)
Congress is not “abridging the freedom of speech” in any way by limiting it in private places, such as homes, businesses, or on TV. As long as you can speak freely in public places, you have not lost a constitutional right. We can and do criticize private companies for making particular decisions (such as not allowing a MoveOn.org ad to play during the Superbowl), but they are not ipso facto unconstitutional decisions.
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I think the idea that judges don’t change the meaning of the Constitution looks pretty naive.
A quick example. Throughout the history of the United States, the death penalty has been available to be used against 16 and 17 year-olds who commit murder.
In 1989 the Supreme Court revisted the issue and explictly found that the death penalty for 16 and 17 year-old murderers was Constitutional (Stanford v. Kentucky).
So, it had been available for more than 200 years as a Constitutional practice.
In Roper v. Simmons (2004) the Court suddenly decided that the death penalty was not Constitutional for 16 and 17 year olds. Where did that come from? Well, nowhere really. The judges cited an alleged change in moral understanding between the 1989 case and 2004. There certainly wasn’t much evidence of a major shift in public opinion against the death penalty, or against very harsh sentences for juveniles. In fact, during the intervening years, contrary to what the Supreme Court cited, the number of states who subjected juveniles to the worst punishments available in the jurisdiction increased.
But the judges ruled otherwise.
Now you may agree with one set of those judges or another. But to say that they didn’t change the effective meaning of the Constitution strikes me as just wrong.
(edited in response to Amp 24 below): I’m responding to Hestia at 16.
Sebastian, who specifically are you responding to, please?
On the more abstract discussion:
“I think the entire point of the judiciary is at some deep level of abstraction, that it be anti-democratic. I think there is ample historical evidence that the Framers intended the judiciary to act as a check on majoritarian excesses”
I wouldn’t agree with this formulation at all. Judges do not have some sort of general anti-majoritarian function. Their anti-majoritarian function is limited only to cases where the majority violates the Constitution. They have a highly conservative function (not in a political sense) in that they are supposed to keep the legislature and the administration from abusing their powers in unconstitutional ways. The legislature is the branch of government tasked with deliberating changes of things. The judicial branch is tasked with keeping the other branches from changing things in ways that violate the constitution (unless they get an amendment). This often acts in an anti-majoritarian fashion, but it is supposed to be out of fidelity to the governing document, not out of some generalized allowance for going against the will of the majority.