March 09, 2005

Publius Makes a "Linguistic Case Against Scalia"

"Scalia looks at the Constitution and sees 'understandings' I look at the Constitution and see words. "

This is yet another great post by Publius. While it starts with some interesting points about last week's decision in Roper, in moves on to very basic observations about what the law is and can be.

Posted by armand at March 9, 2005 01:07 PM | TrackBack | Posted to Law and the Courts


Kennedy's reasoning is interesting in this case: if thirty states support something, then the alternative is cruel and unusual. Does this mean Kerry was a cruel and unusual presidential candidate, since thirty states voted for Bush? I mean, if thirty states is a mandate for prohibiting executions of 17 year olds, then it was a mandate for Bush too, no?

Posted by: Morris at March 9, 2005 10:20 PM | PERMALINK

Uh, no. And that was only part of Kennedy's argument.

Posted by: Armand at March 10, 2005 08:54 AM | PERMALINK

Oh, and Morris. Do you have a strong opinion on this? I don't particularly. But given your heated points in another comments thread about the helplessness and immaturity of teenagers ... well, I was just wondering.

Posted by: Armand at March 10, 2005 09:14 AM | PERMALINK

Morris, read the opinion, not the soundbites.

Posted by: joshua at March 10, 2005 10:07 AM | PERMALINK

You're right, I should've read the case, but I was too busy watching eminem and janet jackson videos, so you can understand how I didn't have time to read about "the evolving standard of decency" in our society. I do have to agree that it's important to protect the dignity of all persons, just like in Bush v Gore. It's also nice that Mr. Justice, Kennedy...remembers we should judge our country's laws by other counties' laws and whether so we can be sure to meet their higher standard, Lord knows our legislature would never do that on its own. Mr. Justice Kennedy talks about the rate of change being more significant than the actual number of states that have abolished the death penalty for minors, so by this reasoning the Supreme Court should ban gay marriages, because states are acting much faster to do this than they were to abolish capital punishment for minors. It's nice how Mr. Justice Kennedy might have considered a national consensus against this prohibition if the state had hired John Zogby to ask a few thousand people whether John Lee Malvo should get the death penalty, and shouldn't they have known to do that beforehand, I'm sure the taxpayers wouldn't mind working a couple more hours for that. I also like the way Mr. Justice Kennedy isn't going to leave decisions about crime and punishment to those incompetent citizens of our country when someone as distinguished as he is can make decisions for them. It's very considerate of Mr. Justice Kennedy to leave to the legislatures the assessment of the efficacy of various criminal penalty schemes; maybe it would be even more considerate of him to leave to the legislatures the actual making of laws.

As for the Publius article on Scalia, I can understand how they call him wrong headed for looking at the standards of times when the laws were written; it's so shortsighted to limit a law's scope to what the actual lawmakers were thinking at the time they wrote the law. Thank goodness there are justices like Mr. Justice Kennedy around to protect us from dolts like Scalia.

Posted by: Morris at March 10, 2005 03:22 PM | PERMALINK

we should judge our country's laws by other counties' laws and whether so we can be sure to meet their higher standard

i hate to repeat myself, but when you're done with janet jackson and eminem, read the opinion. it's the law. everything else -- including this thread -- is just punditry and bloviation, most of it competing for eyeballs by any means necessary.

I'm sure the taxpayers wouldn't mind working a couple more hours for that

it has been unequivocally demonstrated that it costs more to maintain death row -- due to all the additional expense of the many layers of appeal the constitution requires, the separate facilities, etc. -- than it costs not to. if you're worried about the taxpayers, abolish it across the board.

I also like the way Mr. Justice Kennedy isn't going to leave decisions about crime and punishment to those incompetent citizens of our country when someone as distinguished as he is can make decisions for them.

again with the unapologetic majoritarianism. there's really no argument against this. but if that's really what you want, you're in the wrong country. we have a constitution here designed to resist majoritarian whim.

maybe it would be even more considerate of him to leave to the legislatures the actual making of laws

well, see, the 8th amendment isn't just a law. and the nation can repeal it if in sum it wants to. indeed, if the presumed majority lurking under your arguments really materialized, it'd be easy to do so. again, if you want referendum democracy you'll have to go somewhere else.

it's so shortsighted to limit a law's scope to what the actual lawmakers were thinking at the time they wrote the law

its simply impossible to know what the actual lawmakers were thinking at the time they wrote the law for about a thousand reasons publius alludes to in his post and the post linked therein: a sampling:

1. the lawmakers didn't vote on the writing of the law. they voted on the law as written.

2. the lawmakers didn't vote on what they were thinking. they voted on the law as written.

3. even if what they were thinking was relevant, the only useful guide reflecting a consensus sort of group think is, you guessed it, the law as written.

4. surely the framers, pretty bright men to a one, knew intuitively what we now know far more scientifically: that words have evolving meanings.

as publius capably observes, to slavishly adhere to scalia's so-called originalism (something scalia himself doesn't bother to do) would lead to patently absurd consequences none of us desire. arguments may be made pro and con as to any issue, and arguments on both sides may be legitimate, but it's intellectually dishonest to gird what at heart is a conservative moral position by reference to an originalism that is as slippery in practice as the "living constitution" jurisprudence for which it claims to be an antidote.

phew. that was fun.

Posted by: joshua at March 10, 2005 04:21 PM | PERMALINK

Your arguments take all the power from the legislature and put it in the hands of the judiciary. I mean, I know they wear those robes that give the wearers a +3 wisdom bonus, but it really isn't democratic to let them make law rather than decide what the lawmakers were probably thinking (interpret is the word, not mandate), even if they can't get it exactly right. The alternative is an oligarchy, at least according to Wikipedia:
Oligarchy is a form of government where most political power effectively rests with a small segment of society (typically the most powerful, whether by wealth, military strength, ruthlessness, or political influence).

In case you've forgotten, the lawmakers didn't vote on the law as written, they voted for the law as written. The lawmakers didn't vote on the what they were thinking, they voted for the law as written. The second rule of fight club is, you don't talk about fight club. I agree with your third point, they voted for the law as written. And if the judiciary changes the law from what the representatives of our people voted for to what the judges think it ought to be (even when not codified) guessed it, it's an oligarchy. I agree that words have evolving meanings (I hear that the kids today say bad when they actually mean good), that's why it would be good to figure out what the words meant at the time they were written. And by good in that last sentence, I actually meant good. And that goes for the sentence just previous to this one too.

Posted by: Morris at March 10, 2005 07:00 PM | PERMALINK

And if the judiciary changes the law from what the representatives of our people voted for to what the judges think it ought to be (even when not codified) guessed it, it's an oligarchy. I agree that words have evolving meanings (I hear that the kids today say bad when they actually mean good), that's why it would be good to figure out what the words meant at the time they were written.

Well I guess we know who will be selling popcorn at the next public execution of a seven year old. And at the next slave auction. And so on and so on.

You didn't respond to the crucial point: that the Framers weren't so foolish as to think words have a fixed meaning, and they surely wouldn't want Americans a thousand years from now to still be abiding a 1791 sense of cruel and unusual. One thing you can't say about the Framers is that they lacked imagination.

Of course, courts' function is interpretive. And Scalia interprets to. When the result he wants is best supported by ascribing some interior thought to a Framer, that's what he adverts to. When it isn't, he sticks to the text and, as Publius notes, whatever single definition among several best leads to his desired outcome. At least those Justice who embrace a living constitution -- and that's not the same as rule by judicial fiat; instead of pithy soundbites I defy you to provide me a nuanced analysis of why any case we've mentioned here lacks a basis in the law -- are honest about what they're doing. As smart as he is, as rhetorically skillful as he can sometimes be, Scalia is a scoundrel for pretending that his constitution isn't alive as well.

Morris, this "conservative" Court has overturned more statutes than any other Court in history. It's every bit as active as the Warren Court was, and in a way that you'll have to concede is patently anti-democratic (defying the will of Congress). Your position has its proponents who can so hold with integrity, but not one of them, except perhaps for Thomas, sits on the United States Supreme Court as currently composed.

Posted by: joshua at March 11, 2005 11:19 AM | PERMALINK

Morris - Beyond Joshua's retort you aren't really bothering to respond to a key point he raised above - we don't live in a majoritarian system. You want one? Move the the UK and start voting for Tony Blair. Our system is, and has for hundreds of years, been built on the idea that majoritarianism is a VERY VERY BAD THING. That was the view of, I believe, if not every single one then almost every single one of those white guys that wrote our constitution in the 18th century.

Now beyond going down that route (which could lead us into a discussion of why a black guy - and I think a Catholic too - is the one member of the Court who wants to go back to enforcing the worldviews of rich 18th century slave-owning white Protestant men), there's another point you're not hitting directly. You're all energized over the idea that the Court of today is not matching the meaning of the founders when they wrote the 8th Amendment. Beyond getting into the discussion of whether or not the meaning can change (and 6 members of the Supreme Court clearly state that it can and does) - who's to say what that meaning was originally. The 8th Amendment, like most of the amendments can be viewed as rather vague. How do you get at who's view of that issue in the 1780's was the one that's FUNDAMENTAL TRUTH that must be upheld today? The mean believer at the convention? Who was that - what did he believe? The mean believer at the state convention that pushed the Constitution into being? Who was that - and what did he believe?

The meaning of the law is nowhere near as clear as you seem to want it to be. And not just because of the nature of the changes in language over time (though that's important).

Posted by: Armand at March 11, 2005 01:08 PM | PERMALINK

Mmmm...popcorn. And maybe there's no difference between executing a 7 year old child and a 17 year old sniper in your book, but as Joe Friday says, "don't drag me down into your private hell." As to words changing means, the framers probably were aware of this, as you say. But do you really think they sat around saying, people are going to enforce these laws according to whatever unforseeable changes our language will undergo? Or is it a little more likely that the framers thought the courts would interpret the law as it was originally intended? What's the point of the legislature even writing laws if the court is going to change them to whatever they think is best at the time? So you defy me to show a case that doesn't have a basis in the law? How about Marbury v Madison? Where in the Constitution was judicial review before Marbury v Madison? And with all the thousands of rulings in the last two centuries, it would take an idiot not to be able to find some basis in case law to make whatever decision they want.
White guy bro,
As Joshua pointed out above, the framers voted for the Constitution as written. So wouldn't it be a lot simpler to go by the meanings of the words when they were written than to chase down obscure writings of conventioneers, although I know it would put a lot of your fellow political science PhDs out of their jobs. Yes, the 8th ammendment can be viewed as vague, just like the meaning of the word is can be viewed as vague, especially by those who have an agenda. The idea that something banned in only 60% of the states is unusual makes sense only to someone with an agenda. And if you're so upset about the Constitution allowing slavery, why don't you ammend it? Oh, wait, they did that...about a hundred fifty years ago. You have a throw the baby out with the bathwater approach here. Your idea that those considered wisest and most powerful should arbitrarily be able to impose their sophistry on fellow members of a society goes back much further than the 18th century. In fact, isn't that what the Magna Carta prohibited? Do you seriously want to push us back into the dark ages?

Posted by: Morris at March 11, 2005 06:21 PM | PERMALINK

Morris - How do you know the meaning of "cruel and unusual" in the 18th century without studying the "obscure writings of conventioneers" (btw, virtually no political scientists don't do that - that's more for historians or con law types)? You yourself say that it's vague. And it is.

Beyond that - you yourself might want to go the way of originalism, but for someone who so loves majoritarianism ... 1) you seek to enforce the views of men who were not majoritarian; 2) most Americans today don't yearn to frame their politics and society in line with 18th century beliefs; 3) there sure isn't a majority on the court for originalism (it's pretty much just Thomas). So, if it's not the type of judicial behavior most Americans want ... isn't it you who's seeking to impose a personal "sophistry" (if one holds to your extreme majoritarian preferences), or am I missing something?

Posted by: Armand at March 12, 2005 11:57 AM | PERMALINK

Or, Morris, put as directly as possible - which is it that you really want. You seem extremely attached to both unlimited majoritarianism (hmmm, so Gore should have won in 2000?) and an originalist view of the Constitution (assuming, and it's a big assumption that many, may people would disagree with, that we can know the one true meaning that you think did and does exist). But the two don't really fit together. Which is it that you think is more important or appropriate as a guiding beacon for what American democracy should be?

Posted by: Armand at March 12, 2005 12:15 PM | PERMALINK

To somewhat back Morris up here, there is some danger in the courts completely disconnected from original intent, but the core of this debate is more profitably aimed at a discussion of Congress, not the courts.

My take on this is that the courts are perfectly allowed to interpret the law. Where it is vague, the courts must attach some structure to the "vagueness" because all court cases are about concrete facts, people, and outcomes. Those are not vague, and if the law has wiggle-room, the courts have to define it so that real decisions can be made. The courts, for all the right-wing gnashing of teeth, don't "make" laws: they apply the principles of the vaguely worded laws to concrete examples. Take school bussing as an issue: the courts throw out "separate but equal", someone else sues and says "hey, the schools may be integrated, but the communities aren't, so the schools are now all one race. This is illegal!" The courts look at it, and agree (and people call this "making law from the bench, when it's just interpretation of vague laws). If Congress (the people) didn't like that, they could have passed a specific law dealing with bussing, and removing any interpretation from the courts. At that point, the courts couldn't interpret anything, and would have to follow what Congress said (unless Congress passed an unconstitutional law, but that's the Marbury V. Madison debate).

(As an aside, the executive gets stuck in this too, as vaguely worded laws are just as often interpreted by bureaucrats who have to make concrete regulations as judges who have to decide concrete cases. It's the same problem, but gets less press attention.)

The constitution seems clear that the check/balance on the courts is for Congress to pass laws to overturn the courts "wrong" decisions. The fundamental problem here is the failure of Congress to be specific and to revisit those issues that Congress perceives as the failure of the courts to follow their will.

At least for me, the debate over original intent versus modern meanings only comes about through the inaction of Congress. As Morris fears, judicial interpretations that cleave to the "original intent can never be known and besides society has to change and the Constitution is a living document" point of view can, if taken to extremes, leave you with judicial decisions that really aren't grounded in the language or intent of the original law. On the other hand (I'm a raving moderate today), a whole mess of things are very different today compared to the time when some laws were written, and it would be idiotic to attempt to govern a 21st century superpower through the laws and original intent of a bunch of racist (by todays definitions), sexist (ditto), agrarian farmers from the 18th century.

As I see it, the courts were supposed to interpret as best they can, and Congress was supposed to jump in to correct the mistakes of the (fallible) individuals who are judges. The ugliness of gerrymandering, the problems of the linkages between lobbists and Congress, the problems of money and elections (and Congress), and a host of other modern political problems have created a Congress that cannot function in it's intended (Constitutional) role. That's why we have this debate. Fix Congress, and this issue just about disappears.

Morris: how do I get a +3 Robe of Wisdom?

Posted by: baltar at March 12, 2005 02:23 PM | PERMALINK

Baltar - Fine points all. Though, as you mention, or at least allude, "fixing" Congress in ways that would block the need for Court actions of this type is virtually impossible for a host of reasons - not limited to Congress itself. So, like it or not, the Court is left in a position where it has to clean up the messes left by the other branches of government. Though of course it's perfectly fair to argue about the nature of what the Court does in trying to fix those messes.

Posted by: Armand at March 12, 2005 03:42 PM | PERMALINK

You seem to have this idea that I should be concerned with the individual beliefs of the framers. I'm not, I don't care what color their hair was or when they thought it was stylish to wear white shoes. My concern is that if as Americans we presume to be ruled by law, wouldn't it be nice to actually be ruled by the law voted for that can be ammended if it becomes inadequate? The idea that the judiciary exists to fix laws when they're out of date is not in the Constitution. They're not elected representatives. If the US Congress had banned executions of 17 year olds, that would be an effective solution to the problem perceived by the justices. And if it's a state issue, then why is it okay for the US Supreme Court to come in when it wouldn't be okay for the US Congress to do the same thing?

How exactly do you know what Americans yearn for? You obviously had a different idea about who they'd support for President, so what makes you think you know what they want now. That, to me, suggests that your views are out of line with the American people because you vehemently opposed the President that 30 states supported. The American people voted for the President who promised to appoint justices who would not legislate from the bench. And then you either use this as a component of your third argument, or your argument is that if a majority of the court doesn't support originalism, the obviously the american people don't; neither is at all persuasive.

I don't presume there is a one true meaning for legislation, but that is absolutely different from deciding that the original meaning is unimportant and the justices should suit their own moods or ideologies when making decisions because they can't get it absolutely right. That's like saying that your students who won't get a 100 on your exams shouldn't bother taking your class.

You're making my point for me (Thankyou). Seperate but equal was a creation of the Supreme Court that violated the fourteenth ammendment ("nor shall any state...deny to any person within its jurisdiction equal protection of the laws"). It was the court that screwed it up in the first place.

I would agree that if Congress did its job this wouldn't be a problem. And as to the +3 wisdom robe, I can't find a place that will take dollars for one; they all want to be paid in gold pieces or with something called electrum. There is one guy on eBay named Orenthal Simpson who says he has a glove that gives the wearer a +3 to hit bonus, he makes a strong case.

Posted by: Morris at March 12, 2005 07:20 PM | PERMALINK

I'll agree with armand: since Congress doesn't work, we're left arguing about the court and it's proper role. Fine, OK. But the court isn't a good instrument for what it is being used as: their are only 9 of them (not very representative of the country), they are unelected (can't be removed if they stray outside the mainstream), and to check or balance the Supreme Court requires a constitutional amendment (a very, very high hurdle). So, while I agree that the present debate (original intent versus living document) is necessary given Congress' lack of acting constitutional, all of the rhetorical firepower (by both sides) would be better spent of fixing the host of problems that prevent Congress from working effectively. That may seem a weasel way out of this argument, but so much emotion, sturm and drang is caught up in the process of selecting and approving Supreme Court justices that we loose site of the somewhat limited role they should play. The spotlight should be on the failures of Congress to act right, not on the Supreme Court. Can anyone imagine the titanic fight for the next seat there? It's going to paralyze DC for months, when it happens.

It reminds me greatly of the abortion debate. Passionate people on both sides. Everyone can agree that less abortions are a good thing, but each side is so caught up in their ideology that no one really works to actually, really reduce abortions by increasing adoptions, foster care, etc. Same sort of blinders here. Fix Congress, and this debate becomes much less important.

Morris, electrum is fairly worthless. I usually ended up throwing most of mine away. You can only carry so much.

Posted by: baltar at March 12, 2005 10:49 PM | PERMALINK

Morris - As to your second paragrpah, I said what "the people" want, not what I want. I am under no illusion that I am "the people". How do you know what the people want? Generally, we turn to polls, and when I was discussing the views of "the people" above, I was referring to what polls of public opinion show. So you're not really answering my any of my points there. You're just saying I'm wrong with addressing my arguments.

And, btw, the idea that most Americans vote for president on the basis of what kinds of judges the winner will appoint is completely preposterous, so don't try and make that argument. There's nothing whatsoever in the voting literature to suggest that's even remotely the case.

And ok, so you yourself say - "I don't presume there is a one true meaning for legislation". OK, so ... if what matters is the words as written, how do you get at what those are? If what you care about is the original meaning (since that's what you seem to value over current or shifting meanings that are "fixed" to the preferences of today's society) how can you not care about what the framers believed if what you want to go by is "the law" uninterpreted? If you don't want judges interpreting the law, how do you get at it's meaning without looking at the intentions and understandings of the framers? I'm genuinely perplexed by this.

Posted by: Armand at March 13, 2005 01:47 PM | PERMALINK

How about as a way to interpret we go by the meaning of the words, a dictionary from 1789, they did have those back then. And Baltar's point is key here. If Congress were doing its job and revising out of date legislation, this wouldn't be an issue. We could simply have the representatives elected by the people vote on whether to prohibit executions of 17 year olds accused of heinous crimes. How simple is that? Thomas Jefferson and Alexander Hamilton had some brilliant and some bad ideas, but the representatives of our states only voted for the ones codified into law.

The difficulty in looking at polls of public opinion is that most people (58%) don't even know enough about the Court to name a single justice (Fox News Poll November 2004). The Quinnepiac poll (Feb/March 2003) that I think you're referring to asks if the Court should ONLY consider the original intent, or if it should incorporate current realities instead. The Brown v Board of Education case is on point here. It incorporated research showing that seperate but equal was inherently unequal, and that got them to the conclusion that the fourteenth ammendment had been violated. The original intent was to provide equal protection under the laws, but the research showed that in fact this was not what was happening. There is no reason that current realities can't be incorporated to determine if the intent of a law made by congress is being violated, and the Quinnipiac Poll asks if ONLY the original intent should be considered at the expense of current realities. The difference is that what matters from my perspective is the original legislative intent (belief about what should happen) and current realities, not the current Court's intent (beliefs about what should happen) and current realities.

You make some very good points on the Court and Congress. And thanks for the tip about the electrum, it only took me about five years to find somebody who'd actually explain to me what encumbrance means.

Posted by: Morris at March 13, 2005 04:11 PM | PERMALINK

How about as a way to interpret we go by the meaning of the words, a dictionary from 1789, they did have those back then.

Which one, Morris? Which dictionary? And what about the fact that the Framers, all of whom were entirely familiar with the English commonlaw system in the shadow of which they labored, understood certain words to mean certain things in the context of that commonlaw? Should we maybe try to find a legal dictionary from 1789?

The fallacy of certainty: refer to whatever source you want -- you're still never going to pin down the 1789 meaning of anything, any more than you can pin down a fixed meaning for anything now, when you're ostensibly fluent in your native tongue. Ever fought with a girl-/boyfriend over some semantic frivolity? If not, you're the only one. And if you have, you know just how elusive "meaning" really ends up being.

You really need to stop conflating the ephemera of congressional legislation and the constitutive bedrock of the constitution; it's making the discussion borderline incoherent. Yes, both legislation and constitutional provisions are part of an integrated system. But the whole point of constitutionalizing certain things -- say, a prohibition against cruel and unusual punishment -- was to take it out of Congress's bailiwick, and to enshrine the protection outside the reach of fleeting potentially majoritarian passions.

Yes, Congress has a role to play in the constitutional amendment process, so of course it was foreseen that Congress could act on these issues. But amendments go before the states far more directly than the run of federal legislation, and require far more broad approval nationwide, and in this way Congress is restrained by design.

By the way, a conundrum: where in the original language of the Constitution does it fix the meaning of that document to any narrow meaning of those words ca. 1789? Shouldn't a true originalist want some constitutional basis for its peculiar take on interpretation? If the Framers had wanted to tie the moral fabric of the great nation they formed forever and anon to their own narrow circumstances and the words they used therein, shouldn't they have said so?

And while we're at it, why the 1789 meanings? After all, the language used to provide for due process in the Constitution actually originates in the Magna Carta, so why not bind ourselves to the 13th century understanding of those words.

Don't you get it Morris? Certitude is an illusion: no matter what you do, you're interpreting; no matter where you draw the line on meaning, it's arbitrary. To pretend otherwise is intellectually suspect at best -- disingenuous at worst.

Posted by: joshua at March 14, 2005 10:47 AM | PERMALINK

As much as I'd like to do some semantic wrestling with you today, you do have a good point. As much as legislation is not specific about the behaviors to be required or prohibited, it is poorly written. But the better response of the judiciary is to say, "This is a poorly written law, so we're not going to require its enforcement until congress gets its act together and makes it more specific." Otherwise, you just end up with nebulous judicial paradigms that are substituted for nebulous legislative acts. What makes the opinion of the judiciary any more immune to the living language criticism you impose on legislation passed by elected representatives? Of course there are disagreements about what particular verbage meant years ago, as there are disagreements about what it means today. But your Taoist criticism (the Tao the can be spoken of is not the eternal Tao) suggests a futility that is absolutely not overcome (except perhaps in your mind) by substituting judicial paradigms for legislative language.

You fall back on your cruel and unusual argument without responding to the fact that to almost all Americans, a 40% occurence is not unusual. Think about if Merck tried to sell a product that increased the risk of stroke to 40% of its users, should they not be responsible for these effects because they are unusual?

Yes, ammendments are intended to enshrine values, to protect them against from impulsive legislation. But the framers never created the Court to be more powerful than Congress and the President combined, so why do you hold that impulsive acts of the President and Congress are to be limited by the Court, but nothing short of a Constitutional ammendment is to abridge the Court's power to "interpret" the law into something of their own design?

The idea that the framers would have put in the Constitution something saying what you suggest is absurd. That would be like me having to add to whatever I'm saying at the moment, "And this is what I mean, right now, so don't interpret it to mean something else later," a kind of simon says approach to Constitutional Law. Also, they did not fix the Constitution to be static, that's why we can ammend it.

If certitude is so suspect, then what's the point of any law, Joshua? And if it is so suspect, then what leads you to eschew the suspect certitude of the elected legislative and elected exececutive branches while embracing the suspect certitude of the judiciary?

Posted by: Morris at March 14, 2005 01:45 PM | PERMALINK

the funny thing is most judicial activism, as it is erroneously called at both ends of the partisan spectrum, is effected in putative service of the leglislature, or in deference to it. (i should be clear, here, that i at least know the distinction between statutory law and constitutional law, and in this and the next paragraph i am discussing ONLY statutory law.) specifically, to my knowledge all state systems, and certainly the federal system, commands that the judiciary only look outside the plain language of a statute when the statute is intrinsically ambiguous. i don't ask what the legislature was thinking when they draft an adequate law. however, i have no choice but to ask when they draft a law poorly. why? because courts assume that the legislature would not like the courts simply to strike down every poorly worded enactment. and i'm quite certain this is true.

now, unlike the fictional judicary in the right-wing dystopia in your mind that is beset on all sides by the layabout poor and the cravenly sympathetic and the unabashedly french, the real judiciary when it faces such an ambiguous enactment does not just ask itself what it thinks the law should be. what it does, is it looks at other related enactments and tries to fit the statute into them cogently based on certain objective assumptions: congress doesn't enact redundant provisions; congress didn't intend a patently absurd resule; when congress expolicitly narrows a provision to a specific class of things it will not be thought to extend to other things, unless so qualified with some sort of elastic clause. here, one might say there's an effort to glean congressional intent, but it's not the more dubious kind that looks to the content of speeches by grandstanding representatives in the empty house chamber or anything like that: it's basically saying, look, congress doesn't want to make itself look stupid by contradicting itself so where possible we'll interpret the law to make congress look as good as possible, we'll do our best not to find laws unconstitutional (indeed, courts only approach constitutional questions when they have absolutely no choice), etc. i work for an extremely liberal judge who is a paragon of judicial restraint. judicial restraint -- by far the rule rather than the exception -- is not a partisan idea: its in the fundament of our system.

as for your attempt to address the constitutional issues by casting doubt on the whole tripartite government scheme, it's not a constitution if congress can change it anytime it feels like it by a simply majority, a show of hands.

and if marbury v. madison was so damned unconstitutional, so odious to the very idea of checks and balances, why didn't the framers, most of whom were still around, start an insurgency after it was handed down, or at least leave a long legacy of dissent?

if no one gets to interpret the constitution then there is no effective constitution. and lifetime tenure, provided for by the framers, was there precisely for the purpose of protecting the greater nation from the passions of a narrow majority. and if you want to get into intent and judicial review: the very fact that the power to interpret the constitution was vested in the only people in the federal government who explicitly are to have lifetime tenure, that's all the answer i need that marbury was decided in accord with the framers' intention.

as for your 40% why-go-somewhere-robust-in-the-discussion-when-i-can-fall-back-on-old-nonsense non-response, again, morris, read the opinion or acknowledge that you're three parts drudge and one part fox news and consequently (and unsurprisingly) misinformed as to the legal basis on which roper v. simmons was decided. seriously, your monotonous criticism of roper is like you insisting that an apple tastes like chocolate because the orange in your hand is juicy.

Posted by: joshua at March 14, 2005 02:59 PM | PERMALINK

"and if marbury v. madison was so damned unconstitutional, so odious to the very idea of checks and balances, why didn't the framers, most of whom were still around, start an insurgency after it was handed down, or at least leave a long legacy of dissent?"

To this end, I will respond only with the words of Jefferson, who, you might have read somewhere, framed the Constitution:

"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy"

"Their [the judges'] maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

"For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."

Posted by: Morris at March 14, 2005 05:16 PM | PERMALINK

Morris - You keep supposedly answering questions in ways that don't actually respond to our points. What's the relevance of that selection from Jefferson? In the end, Marbury wasn't challenged and we've had judicial review for centuries. If you are against judicial review, ok, whatever, you can have your own opinion. But that puts you way, way, way out of the mainstream of American politics. You might not like it - but it's been here for over 200 years, and it seems likely that it will stay.

And of course how Marbury v. Madison relates to Roper is far from clear to me. If ya'll want to fight amongst yourselves feel free. But I think this thread has gone rather far astray from the topic at hand.

Posted by: Armand at March 14, 2005 08:40 PM | PERMALINK

Bro, you write:
"In the end, Marbury wasn't challenged and we've had judicial review for centuries."
Who was supposed to challenge Marbury? Is there a supremer court out there to interpret the supreme court's ruling? I mean, we could call a Constitutional convention and pass another ammendment to the Constitution, but then the Supreme Court could go ahead and interpret that ammendment to mean whatever it wants. And if I'm out of the mainstream of American politics, does that mean that I don't fall within the 58% of Americans who can't name a single justice?

Roper is just one more example of the Supreme Court legislating what it thinks ought to happen. I know Joshua berates me for it, but the ammendment supposedly violated doesn't say cruel, it says cruel AND unusual, and that 60% of the states have banned it does in no manner make it unusual. The opinion gives another justification as the pace at which states have banned it, but that the Supreme Court would use this as justification for their ruling cripples Joshua's argument that an advantage of the court is its resilience against the passions of the people. I admit the opinion also cites it being unusual because of practices around the world and ethical codes of professional organizations, but personally I don't remember the American Bar Association or the UN being elected by the American people, so you'll have to excuse me if I don't think their standards ought to be the guiding principles of our society.

And in fact, the quotations from Jefferson respond precisely to Joshua's argument that Marbury was in line with the intentions of the framers. Well, they would save for me mixing up which one was father of the Constitution and which one wrote the Declaration of Independence. Not that it matters, because they both opposed the Court's ruling in Marbury:
"James Madison, the 'Father of the Constitution' and architect of the Bill of Rights, would have asserted that the Court had no authority over the executive. He would have been supported in this assertion by Thomas Jefferson, the primary author of the Declaration of Independence and highly popular President."

"His [Madison's] commitment to majority rule does not allow him to cede final authority to interpret the Constitution to the judiciary. In a speech to the House of Representatives in 1789 he said:
I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can he contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments.
Twenty years later he wrote Jefferson:
In a government whose vital principle is responsibility, it never will be allowed that the Legislative and Executive Departments should be compleatly subjected to the Judiciary, in which that characteristic feature is so faintly seen.

In the State Constitutions, and, indeed, in the Federal one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally lasr in making the decision, it results to them, by refusing or not refusing to exercise a law, to stamp it with its final character. This makes the Judiciary Department paramount to the legislature, which was never intended and can never be proper.
Remarks on Mr. Jefferson's "Draught of a Constitution for Virginia," sent to Mr. John Brown, Kentucky, October, 1788 (Madison, 1865, I, page 194)

Posted by: Morris at March 15, 2005 01:09 AM | PERMALINK

Since we're playing the quote game, Jefferson can go screw; I've got the United States Constitution on my side:

Article III section 2

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [Emphasis added]

Morris, in Marbury, Brown, and in countless cases between and since, the Court's injunctions have been paper tigers absent the cooperation of the other branches of the government -- the executive branch in enforcement and the legislature in choosing not to overturn all but the rare case by legislative action. Madison didn't want the Court to have undue power over the executive? Well watch the Court try to enforce something: a handful of octagenarian Justices and whatever Ivy League clerks and aging U.S. Marshalls they can muster go down to the White House to invade . . . you know how this story ends. It's not much of a junta any way you like it.

You and people who share your opinion that the Court is some ubergovernment (or oligarchy, if you prefer) neglect to accept that there is a check on the Court every bit as powerful as the check it exercises on the other branches: that it's powerless unless the executive branch supports it and the people hold with what it says.

If the feds hadn't gone into the south to enforce Brown I shudder to think what would have happened, inasmuch as that would mark a constitutional crisis. But then I shudder to think what would happen if you had your way; every time some twenty people pissed us off, we'd be lynching thousands of people of the same ancestry. That's a virtually inevitably consequence of unchecked majority rule, which is why the Constitution so carefully hedged against it.

Furthermore, Congress exercises over the courts the power of the purse. The Supreme Court can't so much as turn the lights on unless Congress says so. All of which is to say, your whingeing red-state boys and girls could stop this whole show any time they want. But of course they don't want to, they just want to grandstand, and you shouldn't either, not if you believe in the Constitution.

Now, when I speak of Framers, I speak not of any one drafter but rather of the people who accepted the language and ratified the Constitution. No few personages, even so titanic as Jefferson and Madison, can adequately speak to my sense of Framers. The document needed far more support than merely theirs. And I'll go with the language of the document ratified over the asides of anyone because the text is not unclear. Would you go elsewhere? Not much of an originalist, methinks.

And anyway, the language you quote from Madison is relatively neutral in our argument:

I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can he contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments.
I'm not sure what he's defining as "greater powers," since the powers distributed by the Constitution fundamentally differ by branch. But in any case the checks noted above -- the need for enforcement; the power of the purse -- bring the Court down to the same level as the other branches.
In a government whose vital principle is responsibility, it never will be allowed that the Legislative and Executive Departments should be compleatly subjected to the Judiciary, in which that characteristic feature is so faintly seen.
I'm guessing his sense of "responsibility" didn't see multi-million-dollar lobbies with the sort of access actual constituents can only dream about and parties hopelessly compromised by moneyed interests, where incumbents virtually always win in the House and nearly as often in the Senate. And, again, my points above make clear that there is no "compleat subjection" of any branch to the judiciary.

Thankfully, I'll add in closing, the judiciary is not yet "compleatly subjected" to the other branches either, although it would be if the Bush administration, and evidently you, could figure out how to do it. And that would be a shame.

Posted by: joshua at March 15, 2005 10:04 AM | PERMALINK

Well put Joshua. I see no need to carry on with you points about the framers since I think they really say most of what needs to be said on that topic.

But I'll just pile on a few more things. Morris - why do you think that this is what the Supreme Court wants to happen? Justices do not always vote their desires (read Kennedy's conflicted concurrence in the flag burning case), even when striking down popular laws that they personally like.

As a general matter, the Court unquestionably does listen to public opinion. There's tons of evidence of this in studies of the Court (tons and tons and tons), it's hardly running amuck with the arguable exception of Bush v. Gore - sorry can't help myself. :)

Joshua's point about the Court's inability to enforce its rulings is also key here in terms of limiting the Courts power. The school district you and I attended wasn't integrated until over 15 years had passed since the Brown decision.

And since you seem to have so little use for the UN - it's probably worth noting that much of the UN charter and many of documents most associated with its views of "values" were written largely by members of the US government. It's not as if it's a wholly foreign institution.

And, while I don't know the law on this, I'm guessing that "unusual" isn't simply a matter of whether or not a practice is banned. It's also a matter of whether or not it's carried out. It might have be possible to execute 16 year olds in 20 states on a regular basis before Roper - but that's not what was being done.

Who could check Marbury? The American people could have amended the Constitutoin. For someone so fond of the constitutional text ... it can, and could have been, changed. The people haven't chosen to do that.

Posted by: Armand at March 15, 2005 02:13 PM | PERMALINK

I reject your assumptions about what you think the Constitution says, and I wonder if you aren't deliberately being difficult so that you can subsequently argue for the need of interpretation, again without explaining how the judiciary would be better at this than the elected representatives of our country. Are we supposed to rely on the court for the meaning of "judicial power," to let the court determine their own power?

The website I quote makes it very clear that Marbury v Madison was the ONLY case to suggest the power of judicial review while the father of our Constitution was alive. The cowardice of those in the legislative and executive branches to stand up for Constitutional principles hardly makes the case for your argument. Jefferson wouldn't enforce such a decision by the court, and Madison wouldn't even appear before them because he did not recognize their authority.

You accuse majority rule as the culprit of an inevitable genocide: so why is it that the greatest genocides in history happened at the hands of despots, where power was concentrated in the fewest hands, be they in Germany, the Soviet Union, Iraq, or Rawanda?

As Madison said,
"The will of the nation being omnipotent for right, is so for wrong also; and the will of the nation being in the majority, the minority must submit to that danger of oppression as an evil infinitely less than the danger to the whole nation from a will independent of it."

And I find it extremely difficult to believe that the man known for saying, "If men were angels, no government would be necessary," is quite as naive to the temptations of public office as you suggest.

Posted by: Morris at March 15, 2005 03:41 PM | PERMALINK

i argue not for perfection, nor do i suppose madison would have loved this supreme court. more over, i'm not being deliberately difficult.

i'm just reading the constitution. you haven't offered a counter-interpretation, except by reference to the words of madison who, important though he may be, is not the constitution -- nobody elected him the supreme legal authority for this nation forever and anon; rather, they ratified the constitution.

offer a counter-reading of the constitution that doesn't make for judicial review and i'll listen.

oh, and your suggestion that the legislative power of the purse and the executive enforcement power can't possibly be the checks intended by the constitution because of how people (fail to) take up those challenges themselves falls on deaf ears here. i didn't say the checks are being effected the way they ought to (nor am i saying that they are not). there are other constitutional checks and balances being pissed on as we speak; i'll send my children off to way when the duly elected legislative bodies grow some balls and DECLARE WAR, as the constitution envisaged.

but the failure of congress to step up to the plate in the last fifty or so years doesn't mean that that constitutional provision doesn't deserve recognition as a check on executive power; it's merely one our elected representatives are too craven to use.

similarly with the purse and enforcement. the court is no higher than any other branch, in theory or in practice. if nobody gets to have the last word on what the constitution means, then the constitution means nothing.

Posted by: joshua at March 16, 2005 09:18 AM | PERMALINK

Morris - You write, "The cowardice of those in the legislative and executive branches to stand up for Constitutional principles hardly makes the case for your argument." Well, you are making your argument on the basis of Jefferson and Madison's beliefs on this matter. And beliefs would presumably be related to behavior. And since the two men were PRESIDENT OF THE UNITED STATES for over a dozen years after this decision was announced, you would think that if they cared so deeply about the position you espouse, and if the country agreed, that they would have worked harder to take away the power that you feel the Court usurped hundreds of years ago. It's not as if they were in a week position. They were the leaders of the executive branch, and had many allies in Congress (the Federalists were one their last legs).

I look forward to hearing your answers to Joshua's questions.

Posted by: Armand at March 16, 2005 10:49 AM | PERMALINK
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