The impact of Friday’s unanimous decision by the Iowa Supreme Court to allow gays and lesbians to marry is impossible to understate. It’s a direct blow to the anti-gay lobby, a rebuke of social conservatism and a game-changing alteration of not only the physical map of gay rights, but America’s own psychic perception of where it stands on gay marriage. The religious right knows it, too. Our favorite knee-jerk conservative, Rod Dreher, writes that while having lunch with a lawyer friend of his, the “lawyer said that as soon as homosexuality receives constitutionally protected status equivalent to race,” then “it will be very hard to be a public Christian.” Dreher added that “to do so would be to set yourself up for hostile work environment challenges, including dismissal from your job, and generally all the legal sanctions that now apply to people who openly express racist views.”
Rod Dreher is basically an idiot. The strongest argument he can muster against giving gays and lesbians equal rights is that it will make it harder for bigots to act like racists. Dreher and his ilk are everywhere, whether they’re out marching with Fred Phelps or listening to Mike Huckabee equate gay relationships with bestiality.
Most of the time we make rational arguments to counter the intolerant opinions of these people, but the reality is, these people are uneducated morons.
This is why the Iowa decision is such a thing of beauty. The justices of the Iowa Supreme Court were not content to find some legal process issue to grant gay marriage– they addressed the moron’s arguments head on and debunked them thoroughly. “Gay marriage is dangerous to children?” Nope. “Gay marriage infringes on straight marriage?” Um, no. “Tradition trumps equality?” Buzz off.
How about we take this to the next level?
Our newsletter is like a refreshing cocktail (or mocktail) of LGBTQ+ entertainment and pop culture, served up with a side of eye-candy.
Of course, the morons counter that the Supreme Court has invalidated the will of the people, that they are “activists” who are shoving gay marriage down the throats of people who are unwilling to tolerate the idea– and for those who aren’t ready for the idea of two men or two women making a public lifelong commitment to each other, they’re absolutely right; that’s precisely what the court did.
Even more so than the fact that the decision allows gay marriage, the Iowa Supreme Court’s decision is a vindication of our idiot-proof democracy.
“Idiot-proof” sounds like a glib term, but that’s precisely what the Founders were intending when they crafted the Constitution. It’s easy to forget in an age where the opinion of the common man, be it a plumber from Ohio or the tween dialing 500 times for their favorite American Idol, is held as a sacrosanct virtue, but our government is structured in a way that takes a very dim view of the average American. There’s good reason for this; most of of us are totally unqualified to make decisions for each other.
Put it this way, if I could rule the country, we would be spending vast amounts of money on high-speed rail projects, the death-penalty would be abolished and you would fall asleep each night with a speaker under your pillow playing recordings of Neil Patrick Harris reading the latest posts on Queerty. This would be a rocking world for me, but probably not for most Americans.
Instead, we rely on others to make the big decisions for us– and we leave the biggest decisions to the judiciary branch. It’s been in vogue the last 40 years to disparage the influence of judges. Legislators tried to hem in judges with mandatory sentencing laws and in the court of public opinion, there’s nothing worse than an ‘activist judge’. It wasn’t always this way and in recent years the courts have pushed back against Bush-era rulings aimed to strip the judiciary of its power.
The Iowa ruling isn’t only a rebuke of social conservatism, but also a reaffirmation of the court’s ability to weigh in on big issues, to take in the 10,000 foot view and to shape policy. It’s a system of checks and balances for a reason, after all. Judges are not perfect and are prone to making bone-headed decisions as the rest of us, but we hire them (indirectly through legislators) to weigh in on issues of life or death, freedom and equality, fairness and access. When it comes to issues of social justice, executives and legislators historically have shown little backbone– they have constituents after all, but the courts have come through time and again.
That’s the beauty of our idiot-proof democracy and when it is thrown out of balance, the entire nation suffers. There’s a chorus of folks calling for our nation’s judges to but out of the country’s business. It’s time for those who care about the rights of minorities– be they gays and lesbians or homeowners buying unscrupulous insurance policies — to stand up for the courts.
bigjake75
I am so glad to see a state supreme court unanimously recognize our rights to marry…which is a right to contract, just as fully as straight Americans. The court saw correctly, that we cannot have separate but equal status for some..years after that form of institutional bigotry was done away with in matters of race.
It is important to keep in mind that we are not asking for, or even demanding for, our rights to be given to us. WE ALREADY HAVE THOSE RIGHTS AS AMERICANS…TO BE EQUAL UNDER THE LAW. However, the majority, via government, have been infringing on our rights. This is a true constitutional outrage, as the founding fathers intended our constitutional republic to defend our rights from the tyranny of the majority!! But I am afraid that too many Americans think their rights come from the Government. They do not. They are ours, sovereign of any government.
The court was correct in its reasoning, and was correct to flatly deny the false claims of the anti gay bigots. After all, the institution of marriage has been completely degraded by divorce and broken families anyway…and NOT by gay divorce mind you.
Now, to an assertion by Queerty that the courts were intended/are the most important branch of our government. You are so incorrect. The courts, while a check and balance on the rest of the system (as we have just seen), are not the seat of public policy. That responsibility was intended to rest with the Legislative branch, the representatives of the people. The executive was to enforce the laws. We have moved into an age of imperial presidents, and activist courts-sometimes we like the activism and sometimes we don’t.
Now, the Iowa case was not activism. The Constitution of the United States forbids separate but equal. The US Supreme Court just needs to rule on this issue and save all the nonsense in the states. Ultimately justice will prevail.
Now, at the risk of opening myself up to attack…the concerns of some religious people are founded. How many activists in our community..in fact on this site..attack religious people and call all sorts of names? How are they supposed to feel? We need to stick to the issues, stick to the constitution, and stick to the argument that will win over the people in the end-Fairness. Americans are generally fair, and if we give our arguments with a mix of passion and reason, we will win the day. And do so without scaring others. If religious people are not given more reasons to hate us, their resistance will come down sooner.
Anyway, hooray for the Iowa Court. I believe this will prove to be the turning point for this issue.
InExile
@bigjake75: I do not belieive in appeasing the religious right. They do not hate us because we say bad things about them, they hate us because they have blind faith in all of their “good books” that say we are an abomination. There is no talking to them, reasoning with them, or educating them because like the Taliban in Afganistan, they beleive what they choose to believe, they are the American Taliban. The best way to conbat the religious right is to stand up to them with the facts, just like the Supreme Court of Iowa did. Reading all of the points they made in their judgement was a true breath of fresh air!
george duke
its about time to see that gay and lesbians can ahve the same right to get married as a starght couple i wish that in the state were i live they would do the same but in oklahoma they will never approve it cause the churches here will never let that happen and hopefully it will be changed here ….
strumpetwindsock
@bigjake75:
I agree with your concerns to a point, but there is one contradiction in your argument:
If the final decision on public policy rests with the legislature then you effectively DO have tyranny of the majority.
If a proposed law is unconstitutional, the judiciary have to have the power to strike it down and force policy to follow the law.
I know some countries have a stronger tradition of policy driven by courts, but ideally neither should have absolute power. If, as I suspect, you are arguing for balance, then I agree with you.
As I’ve written a few times, I think the U.S. Supreme Court is shirking their responsibility by not hearing challenges to DOMA,
and leaving the Executive and Legislative to carry the ball on this. Human right cases should not be decided solely by politicians who may be more concerned about getting elected than doing what is right and legal.
TANK
Ah, Plato. You took yours, but in the end, you came through.
bigjake, you offered a statement about natural rights theory, but no argument. Got an argument against legal positivism?
Next, define what you mean by judicial activism, and perhaps mention an example of what you consider judicial activism.
Michael W.
No more author names at the bottom of posts? I’d guess this was written by Japhy but I’d like to know for sure.
Good read, btw.
strumpetwindsock
Another thought:
Critics of the judiciary say they shouldn’t make policy because it is undemocratic, but that is an inaccurate perception. Judges’ decisions are more strictly bound by the law than politicians’ (and if they are honest – by the public good rather than their own biases).
Politicians are like developers who have an image of the building they want. Justices are the engineers and inspectors who ensure it is built in a way that does not fall down.
Likewise, if we don’t follow the law, sooner or later the whole system falls down.
CTBottoms
@Michael W.: I agree, lack of by-lines are awful. By last count, you have around 4 or 5 different writers contributing to this site, so why not just give them the credit that they’re due? If this a just a redesign, it’s poorly thought-out, and if this is someway to diminish the contributors, it’s just shady and unprofessional.
thatguyfromboston
I agree with you that Rob Dreher is an idiot. I’ll further assert that he is not a Christian, or at the least does not fully comprehend what being a follower of Christ is and is not. Being homophobic, racist, or generally not loving your fellow-man is the exact opposite of what Christ taught.
WillK
Excellent read. I am hoping that the decision in Iowa has an impact on a certain decision in my state, California.
John in CA
After hearing California Supreme Court Justice Joyce Kennard say that “the people have the inherent right” to define what constitutes a “human” (by popular vote) and federal Chief Justice John Roberts advocate the notion of a “unitary executive” imprisoning random people without charge — you’d have a hard time convincing me the judiciary in America is anything but completely deferential to the government.
Far from overstepping their authority, many American judges have apparently decided they have no greater responsibility to justice at all. If the president decides you’ve committed treason, then you’ve committed treason. If a mob of torch wielding villagers want to target minorities, then that’s fine too. This isn’t liberal democracy. It is direct democracy at best. And at worse, it can descend into the depths of popular tyranny.
Aren’t the penguins the ones who are supposed to serve an institutional firewall against that sort of power grab? How can they be “activist” when they aren’t even on active duty. They’ve gone MIA.
onefish
@thatguyfromboston
Too many people on this site can’t distinguish the religious right from the religious. If you are a nasty hater trying to oppress other people, you are NOT a Christian. Jesus said very clearly that many people would falsely call themselves Christians, and I am certain this applies to the leaders if not the followers of the anti-gay religious right. The religious right says that their orthodoxy (whatever they personally define that as) proves that they are real Christians, but Jesus and Paul said, no, it is not orthodoxy but love that proves you are a Christian.
orpheus_lost
Wow! So much misinformation in so few posts. It must be time for another high school tutorial on government.
There are three CO-EQUAL branches of government. The legislature (congress) creates law. The Executive (president) enforces law. The Judiciary (legal system) INTERPRETS law. This system was created to provide a series of check and balances that can halt abuses by any other branch of government. When the members of each branch assert their powers, this works very well.
In the case of the Iowa decision the judges interpreted the existing laws of the state. They are not activists, they are doing their jobs. If the people of the state disagree, they can elect a legislature who will repeal the laws that caused the court to rule the way it did. Until such time, the law states that ALL people have an equal right to marry the person of their choice.
I only wish the federal supreme court would interpret the 14th amendment based on its wording, not their own bigotry.
Pragmatist
@orpheus_lost: It’s not quite so simple as that, contrary to what the high school civics teacher might have said.
It’s true that the judiciary exists to “interpret” the law. The problem is that there is indeed some genuine controversy as to how far a court can stray from the written law and still claim to be “interpreting” it. Many years ago, the federal judiciary decided it should be able to read entire complex provisions into the Constitution, provisions that had never actually been written into that document. I’ll decline to take sides on whether it was a proper or successful course of action; I only want to point out that the framers of the Constitution never contemplated “interpretation” on that scale.
Please bear in mind that judicial power is not an unqualified good. People tend to conflate large exercises of judicial review with the creation of civil rights, and so they conclude that a powerful judiciary will only give them things they want. Not true. Judicial “activism” has been used for reactionary, conservative, oppressive purposes just as well as it has for liberal ones. Live by the sword, die by the sword.
The Gay Numbers
The trick to understanding modern conservatism is to realize that conservatives are not good faith actors. Conservatives lie for the purpose of winning. Once you understand this, the “judicial activism” narrative takes on a different light.
The narative is about preventing gay rights, or economic rights, or any number of other things, rather than for the purpose of describing real feelings about judicial review. The structure and processes are besides the point. Thus, you can have a Sarah Palin argue she was denied “free speech” because a reporter questioned hera about her attack on candidate Obama. Someone can say that a no on 8 voter is being denied their equality under the law because they are subject to criticism.
They do not- on a deeper level really believe this. They are just throwing the kitchen sink, and hoping you will catch it. They know how to play the liberal psychology (or used to) very well. We are process-y. We worry about things like fairness and process and making sure everyone gets a crack at debating their position in a fair process.
They are worried about winning. That’s why for 40 years they kicked our ass. Fairness is a much harder argument to make than kicking someone’s ass.
They are against “activism,” which is really saying one is against judicial review, but, what they mean is that they are only against judicial review when judges do not yield the result conservatives want.
Sure, conservatives are for popular action, but, again, only if conservatives agree with the popular will. If not, like say “healthcare reform,” they will simply make shit up. They will lie about the popular will be claiming Americans are for what conservatives are for.
Most people are now in favor of the choice to legalized abortion, and it does not change the conservative goal of overturning Roe v. Wade. The S.Ct. has been dismantling investor rights for years, and I do not see any conservatives complaining.
My point? Don’t get caught in the conservative game. Rather than trying to defend judicial review. Demonstrate how they are bad faith actors who are not telling the truth about judicial review rather than simply trying to defend judicial review. The later is inheritly a weaker position.
The Gay Numbers
@Pragmatist: I have no idea what you are talking about. Judicial activism is a made up term meant to avoid the inherit nature of the process of having 3 branches of cover act as a check on each other. So of course, people are going to disagree. That’s the whole point. Where that line is not suppose to be something that youa re going to know just by looking at it. If it were, there would be no reason for a judiciary since we could just plug in the answers.
The other problem with your comment is that it suffers from terminal vagueness. What decision are you referring to?
In addition, you suffer from confusing disagreement on how best to decide a case with whether those disagreement are valid. Take orginal intent, as one of the approaches-t he one advocate by Scalia. How exactly does one determine the intent of men who are 200 years dead? We can’t even figure out what each other mean now, much less 200 years ago. How are we going to do it with facts that they could have possible had at the time.
My point is simple- stop buying the narrative , and try to understand the implications of what you are saying. Will judges sometimes make bad decisions? Absolutely. So do the legislature and executives. That’s the whole purpose of having the checks. but there are tests and approaches to the checks which are now under assault by conservatives who are more interested in the ends that they want than the means (namely our process of checks and balance). So they will call equal protection analysis “judicial activism” becuase it protects the minority from the majority when in fact the function of equal protection is precisely to protect the minority from majority.
The problem in CA is that they render equal protection meaningless because to have a bare majority vote means there is no protection from momentary majorities. It’s a can of worms that essentially renders all suspect classes as susceptible to the whim of the majorities going forward. To find that this is unacceptable is not judicial activism. It’s following the precedent behind the spirit of equal protection.
Rememer, if people disagree- they can still check that power by now through 50 plus 1, bu t amore involved process.
This is true of Iowa too. If people really do feel that the S.Ct. went to far they can now vote in to successive legislature who will put out an amendment that the voters of IA can still support. that’s the check.
This is the process we have. But as I said above- it does not matter becuase conservatives are in it to win. They could care less about the processes.
strumpetwindsock
@Pragmatist:
Plus “activist” isn’t usually accurate.
Sometimes it is simply an interpretation of the law into uncharted territory, without an agenda behind it.
But you are correct about the law going both ways.
Our Supreme Court several years ago ruled that a province could separate from the country if their residents voted for it in a referendum with a clear question.
I don’t think there was a judge on that bench who was happy having to make that decision, but they had to rule according to the law .
@orpheus_lost: But the judiciary does have a more important and technical role in the law than the other branches because they evaluate it to make sure it is LEGAL. Your legislature can have all the votes or referenda you want to reinstate slavery – it won’t come to pass because the law won’t work.
@The Gay Numbers: I get your point and agree absolutely. But I know some people on the left who are equally skilled at deception, coercion and theft.
The Gay Numbers
@strumpetwindsock: Well sure, Bill Perdue comes to mind. However, I am discussing the mainstream of thought in the U.S. I judge this by which extremist is in charge most of the time rather than by whether there are extremist on either side. And,f or the record, I would add that there are quite a few moderates like that- including centrists and I am about to add Obama, but I am still waiting for the jury to come out on that. The say anything to win crowd rarely means what it says, and will say anything to win. You have to be able to realize that’s what’s happening rather than taking their arguments seriously. This is why I don’t take Bill seriously.
Also, you are wrong about the relationship between the judiciary and the legislature. Under American Con Law, one can still amend the constitution, if one wants to re-institute slavery. It’s not going to happen, but that structure and process does exist to amend the constitution in this way. That’s the legislative process for amending the constitution. THe idea is that while the courts can interpret the constitution, there is still an avenue of the supermajority that can overcome the S.Ct.’s ruling assuming there is a Constitutional issue. If it’s not constitutional (as in requiring an amendment), then a simple majority can address the issue. Not every action of the S.Ct. arises to the level of violating the constitution. It can be a quesiton of whether some action violates an act of Congress. THe court may rule one way, and the Congress can come back to rule another. For example, the court recently deciding on shareholder derivative suits. The Congress could act to change the court’s ruling. But I doubt it will given the corporate nature of congress. Corporate as in crony capitalism rather than capitalism that represents real markets.
As a practical matter, these issues of Con Law come up in very specific areas- like extension or decrease of rights. They all have well worn precedents. Some times those decisions do suck- like Kelo, which involved the takings clause (or emminent domain), but that was a case that could not be decided any other way given what the precedents said. Namely that there is no limited to the takings clause. Ironically, that case perfectly illustrates my point. Although I agreed with Scalia, OConnor and the conservatives about the conclusion (that I wanted the case decided to prevent taking of low income people’s property) this does not change the case law. The case law and constitutional language favored the other side heavily. But, they were more than willing to ignore original intent and all their other little games to achieve their conservative ends.
http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London#Dissenting_opinions
petted
@Pragmatist: I think most of the founders quickly gathered a special appreciation for the judiciary following Marbury v. Madison, only 16 years after the Constitutional Convention. I’m confident if the Founders had concerns about Judicial review they would have given voice to it following that ruling and some of them did, Jefferson for one, yet nothing came of it perhaps because the alternative is much worse.
orpheus_lost
@Pragmatist: I’m going to assume (possibly wrongly) that you are referring to the Roe v Wade ruling that stated that a woman has a right to privacy that extends to her own body. If this is the case then I would hardly call that “activism”. It was a sound ruling based on legal precedent and not some mythical wide ranging “interpretation”. If it is some other ruling you are referring to, please let me know.
As for the rest of your post, I’m fully aware of what a poor ruling can do – The Dred Scott Decision comes quickly to mind. I have rarely, if ever, seen an “activist” decision come down on the side of justice in this country, only on the side of the powerful and I do not believe the judiciary should be used in such a manner. However, it really is as simple as I’ve stated. Congress and the people have remedies at their disposal for rogue justices if they choose to implement them. And I will end this post by merely stating that I find it interesting that you would not point out a decision like Hedgepeth v Washington Metropolitan Area Transit Authority as a prime example of judicial activism.
Bill Perdue
@The Gay Numbers: But I know some people on the left who are equally skilled at deception, coercion and theft.
@strumpetwindsock: Well sure, Bill Perdue comes to mind.
You two make such a cute couple. You sit on your clittle entrist fence all day and make drivel together. It must be heaven for you.
strumpetwindsock
@The Gay Numbers:
Yeah, I know the spirit of the relationship is different down there.
I was aware that your legislatures could override and force constitutional amendments, but I had thought the “bill of rights” part of your constitution would trump any abuse.
After all, what good are rights that can be voted out of recognition?
The notion of mutable rights is what makes laws like DOMA seem so unconstitutional in spirit. How can you recognize a right in one jurisdiction but not in another? Rights are absolute.
Likewise the notion of an amendment forbidding marriage equality flies in the face of human rights. Institutions like marriage don’t have rights that need protecting – people do. But I suppose that bridge was crossed with the polygamy amendment.
Hopefully it will never come to that; if recent state decisions are any indication the trend seems to be going the other way, and hopefully once the Federal court has to deal with it (as they inevitably will) that will add weight to our side.
Our Canadian courts have been very active in changing laws, perhaps because our constitution is only 30 years old.
On the other hand we have a “notwithstanding clause” that allows the feds or provinces to completely ignore a Supreme Court ruling; fortunately it has hardly ever been used (Alberta considered it over marriage equality, but backed down).
On the subject of right wing lies, I was actually thinking of several left wing politicians, but I take your point. Interestingly enough, one of their biggest lies is that your founding fathers built your country on a religious foundation, when the opposite is true. They did their damndest to separate the two.
strumpetwindsock
@Bill Perdue:
My “clittle entrist” fence?
That’s an interesting image, Bill.
Bill Perdue
@strumpetwindsock: As a rule, knowing that I suffer from a severe case of stumblefingers, I take the trouble to respect readers and use a spellchecker. But for something that concerns only you and Obama’s Numbers …
Your pedantic little pieces contain few typos but a vast amount of right centrist disinformation.
I’ll take the occasional typo any day over lies and apologetics for bigots.
The Gay Numbers
@strumpetwindsock: No, the Bill of Rights are amendable. Indeed, the 14th Amendment was the product of amending the Constitution.
One of the reasons conservatives are full of shit is precisely because we are not talking about a lacks of checks and balances on each branch. We are talking about how easy the conservatives can fuck with our rights. Indeed, even in the CA case- the argument that the chicken shit Justices want to gloss over is not that people are saying that there is no ability of the voters of CA to amend the CA constitution to deny gays the right to marry. It’s that they are saying the process is made too easy. That you can amend by a majority rather than the more difficult check of amending by a combination of legislature and as I remember super majority of the voters. Voters are actually still protectd, but so are the minority by making it more difficult for the majority to act.
Indeed, you have seen this, as I remember, in states like FL?? The point is that this is b/s arguments that people spout out although it’s not factually true. It’s a narrative. It’s like lawyer repeating certain phrases in the movie version of Chicago. People hear it so much that they become puppets and repeat it as if it’s their own words. Not much thought goes into it other than the regurgitation.
strumpetwindsock
@Bill Perdue:
Oh lighten up. It’s an interesting image. No slight intended.
@The Gay Numbers:
The amendment/revision question, you mean? Even so, the notion that ANY majority can do such a thing shows a misunderstanding for what rights are.
And the talk of a compromise – grandfathering the marriages that took place while it was legal – is shows equal ignorance.
Sammylovver
@Pragmatist: There seems to be this common idea that the Iowa Supreme Court functions under the same rules as does the Federal Supreme Court. Of course, each is responsible to their respective constitutions. I do not know much about the Iowa state constitution but from what I understand the Court was simply determining who was covered under the law, which would be an acceptable use of their power.
However, on a national level, the Supreme Court is bound by a whole different set of rules. The Constitution reads: “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.”
It then goes on to give Congress the authority to add or remove juristiction over different areas, as well as giving Congress the power to change the number of judges and decide the other duties of the Court. Congress also controls the entire Supreme Court budget and has, in the past, effectivly shut down the court by freezing its budget. All of this power is granted to Congress in the Constitution. It seems clear that the founder did not ever intend for us to have a powerful judiciary.
The entire notion of checks and balances is popular, but incorrect. The Founding Fathers undeniably wanted Congress, as the representative of the states and people to have the greatest authority.
The presidency was intended to function in the role of “chief administrator” and the Court was added almost as an after thought. Ultimatly Congress can overturn a Supreme Court decision and has in the past added the line “this bill shall not be subject to any judicial review by any court” and placed the law outside the authority of the Court.
It is true that having the legislature in control allows the a sometimes tyranical majority to force its will on minorities, but this is the price you pay for democracy, a system that is defined as rule by the majority.
What about the 3/5 compromise, where slaves would count for 3/5 a person. What about the fact that no where does the Constitution give African Americans and women the right to vote? The Founders were obviously not concerned with protecting minority rights so it would be a mistake to assume our Constitution does so by default. The Constitutional ammendment process is provided to change, update, and clarify the Constitution, we cannot rely of a favorable ruling of from the Court. If there is uncertainty around what an ammendment means, pass a new one.
That being said, horray for Iowa! I am glad it was a favorable decision but if we want to see a similar change at the federal level it must be via legislation, not by judicial edict.
strumpetwindsock
@Sammylovver:
Very interesting.
State Supreme courts must be able to make rulings based on the federal constitution though, no?
But the notion that a legislature can forbid judicial review is ridiculous (though essentially the same as Canada’s notwithstanding clause – though that is at least IN the constitution).
I wouldn’t say change MUST come through legislation. It is certainly the best way, but you might be waiting a long time. Compare the legacies of Roe vs. Wade and your proposed Equal Rights Amendment.
The Gay Numbers
@strumpetwindsock: I agree, but that’s the process in the U.S. More importantly it illustrates how cowardly the judges are being.. Afterall the discussion is not really about whether there is a process for checks and balances. It’s which process. They know it. History will look bad on them if they decide wrong in the California case.
By the way, I say the same thing about Obama’s statements regarding marraige. He knows full well as an attorney that what’s being discussed is not religious marriages, but the civil marriage process of the state. That he pretends otherwise is offensive. But, if we are going to get what we want here, we have to push him rather than pretending he’s anything more than a politician trying to play to American ignorance about our own system.
The Gay Numbers
@strumpetwindsock: @<a Just to let you know, Sammy has no idea what he’s talking about. He’s spouting idealogy. Engaging him is a waste of your time intellectually.
As for your question, about state versus federal courts- it is complicated. The issue with courts in the U.S. is that we work under a federal system.
The federal and state courts have different jurisdictions that can overlap. Usually the highest court of a state sets precedent for state law unless state law based on the state’s constitution. This is usually valid unless found unconstitutional for some reason that affects the jurisdication of the U.S. S.Ct. under the federal constitution. The state courts in some ways have broader powers to decide cases.
The federal courts are courts of limited jurisdiction. They affect a wide number of things but they ultimately decide how federal law applies to a situation.
How does this work? In Ca, because there is no federal question since the courts have not ruled on gay rights federally in a way that matters for equal protection, the final court of review will be the Ca S.Ct. However, let’s say that the U.S. Supreme Ct. decided that gays were a suspect class protected by equal protection. Then the state supreme court could invalidate are both the state con law or federal.
By the same token, if this were a federal issue, and there was no federal con law question, the federal courts could decide the state law question based on the state law of CA alone. However, if the federal law does exist like federal equal protection for gays, then they could decide on both state and federal law, and indeed can invalidate the state action if it violated federal con law.
It gets even more complicated with rules meant to limit what types of cases judges will take on- no only for jurisidiction, but also for braodness of response to a case. The judges are expected to, for example, narrowly tailor their answers to respond to only the legal issue before them rather than creating broad catetegories unless the fact pattern of the case requires it.
In other words- if you are with me so far, what conservatives call judictional activism really is a narrative. The reality is far more complicated about what’s heard, how it is heard, etc. Another example- people ask why couldn’t the CA pre-decide th e issue before Prop 8 was passed. The answer is that there was yet anothe rlegal issue of ripeness meant to limit the Court. Under ripeness you can not respond to a situation until a party is actually harmed by a state law. Prop 8 had to pass in order for that to occur. I am not even getting into other limitations like mootness.
John in CA
@strumpetwindsock: Some of the world’s more recent constitutions – South Africa and Ecuador come to mind – attempt to solve the problem you raise by introducing a “Non-Derogable” clause. That is, the constitutions are actually written in such a way that forbids tampering with some fundamental rights.
For example, the South African Parliament cannot overrule the courts by amending the following parts of their constitution:
Equality – With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language.
Human Dignity – Entirely.
Life – Entirely.
Freedom and security of the person – With respect to torture, to cruel and unusual punishment, and to medical or scientific experiments without consent.
Slavery, servitude and forced labour – With respect to slavery and servitude.
Arrested, detained and accused persons – With respect to the right to remain silent, to disavow forced confessions, to challenge the lawfulness of the detention in person before a court, to a fair trial, and to information about the charge(s) in a language that the person understands.
Children – With respect to protection from maltreatment, neglect, abuse or degradation, to be protected from exploitative labour practices.
Sections of the constitution shielded by a Non-Derogable clause are immune to the normal amendment process. The legislature cannot vote to suspend or alter any of those rights. Nor can the electorate cannot vote to suspend or alter any of those rights through a ballot initiative. The only way to legally change protected parts of a constitution is to dissolve the legislature and call for a constitutional convention. This would trigger fresh elections for a drafting assembly. Thus, the people would be allowed to weigh in. However, unlike with a straight referendum, the masses cannot expedite the actual process. The drafting assembly would still be a representative body of politicians, lawyers, academics, and what not (and therefore beholden to a wide variety of interests). They will still meet like a regular Parliament until the new constitution is ready. The idea is to drag the procedural aspects out for as long as possible. Theorethically, cooler heads will prevail. And most of the rights in question will be preserved in the new document as well.
Nothing is fool proof. If a dictator wants to seize power, then they’re not going to play by the rules anyway. But all things considered, Non-Derogable clauses are a good idea.
John in CA
@John in CA:
That bit above should read –
“Nor can the electorate vote to suspend or alter any of those rights through a ballot initiative.”
strumpetwindsock
@The Gay Numbers:
I think I got most of it, thanks. The constraints are interesting.
Up here the provincial court cases striking down marriage discrimination used Section 15 of the charter, even though it does not specifically mention sexual orientation.
The section’s wording has been interpreted to mean that the rights and freedoms extend beyond groups specifically mentioned (race, gender), and there were some sexual orientation cases won on that basis in the 90s which set the stage for the marriage challenge.
On your judicial activism myth, there were similar accusations here in the last year when our right-wing minority federal government (because of their freemarket dogma and kowtowing to the Americans and the WTO) tried to shut down our wheat marketing board. Thanks only to court challenges, they failed despite trying every trick in the book including tampering with voters lists.
Of course when they failed there were howls about judges standing in the way of democracy and subverting the will of the people. The irony is they didn’t have the majority in the Commons to shut down the board; in fact the courts reflected the will of parliament as a whole to keep the wheat board alive.
strumpetwindsock
@John in CA:
The non-derogable clause makes perfect sense. Rights are rights.
The Gay Numbers
@John in CA: Interesting- comparative law. I did not know that. Thanks.
The Gay Numbers
@strumpetwindsock: Here, the economic decisions of the S.Ct. rarely represent these days the “will of the people”, but instead crony capitalism. I am a capitalist, but of the kind practiced in social democracies rather than laissez faire style capitalism of the U.S. You do not hear the conservatives complain when a court case denies a worker his or her rights. Just when it’s some social conservative issue regarding the Constitution. In some ways, this is especially fucked up because most of the economic issues are not about Con Law, but interpreting what legislative laws mean (their limits etc) when there is controversey amongst lower courts. Ie, the right to derive law suits under SEC rule (how we monitor publically traded companies here) etc. For example, when they were questioning Alito (a Justice on the U.S. S.Ct.) he was trying to explain a case in which he said that people who worked in mines were not working in mines. This what he said in one of his cases- that mine workers are not mine workers because he was trying to prevent them from obtaining the benefit of a statute meant to protect their safety. I shock my head because they went on and on about abortion as if it were the critical point rather than how fucked up his decision was to mine workers. We are all brain washed down here. Social issues are juicy, but where we get screwed are the economic issues. Yet, you do not hear a pip out of conservatives. There are easy checks on this through the Congress. Yet, the Congress does nothing. At least until recently, one case, for example, involved equal pay for women (in the U.S. women for the same job often make less than men), and the Courts favored the conservative limitation on federal laws. It took a new act to change this. But, this is the U.S.- conservative even when its not in our interest.
Flex
We don’t have anything to celebrate about until SCOTUS bans the bans. It is absolutely bullshit that hundreds of thousands of strangers voted away my right to get married in California.
This is clearly unjust, and prop 8 should be destroyed!
bigjake75
@InExile: I agree that the court challenging and dismissing the asinine claims of the religious right was key in making this decision key to our fight to enforce our rights.
And I never will appease the haters. We just need to be sure to differentiate between the nutjobs and religious people who are not haters. Thanks for commenting!
bigjake75
@strumpetwindsock: I am arguing for balance. And yes, it is bullshit that the SCOTUS does not hear doma cases. A national law that discriminates…hmmm…maybe a good case for the court??? You think?? They won’t hear it, because they know they will HAVE to throw it out. I think even Alito would have to side with us. I could see Scalia and Thomas and maybe Roberts against us…but I think for sure it would be thrown out. Their only chance is to not hear it.
The Gay Numbers
@bigjake75: There already is a balance that you pretend does not exist. They are called checks and balances. There are means of addressing your concerns. You just don’t happen to like them.
bigjake75
@The Gay Numbers: I would respond to your incorrect assessment of my feelings, but you would not bother reading or understanding what I say…go back and re-read my posts on this article. Then you will see that I love and respect the constitution, I do understand the system, that I am glad the Iowa court did what it did….why bother here, I don’t thinkyou will pay attention.
On this site, so many comment at others without taking into account the full context of comments made. Before you comment, calm down, re-read, and be sure you understand what it is you are responding to. Good grief..
RM
That said, if California supports Prop 8, I say we throw the bastards out. The rightwingers keep threatening to do that whenever they disagree with a decision–why can’t we?
The Gay Numbers
@bigjake75: @<a I read your other posts before I wrote my response. It does not change the fact that there are checks and balances regardless of your feelings on matter. You argue as if there are none.
Pragmatist
@The Gay Numbers: Judicial activism isn’t my term; I think it’s bizarre and too politically charged. (Note that I only used “activism” in shock quotes in my original post. For ease of typing, I’ll omit the scare quotes below.)
In any case, I think you’re misstating the concern about so-called judicial activism. The concern is not that the judiciary is exercising a checks-and-balances role by performing judicial review of legislative enactments. I think you’d be hard-pressed to find anybody these days who’d argue against judicial review as a general proposition.
The real criticism is that courts take an improper legislative role by literally writing new, substantive provisions into the Constitution, and by (effectively) repealing provisions that are clearly there. That makes a lot of people uncomfortable — it means that 5 people with life tenure can sidestep the cumbersome amendment process that was built into the constitution, and fill it with whatever they like. (And they do: constitutional law has been very unstable, varying greatly with the court’s membership, precisely because “constitutional law” in our modern era has very little to do with the U.S. Constitution itself.)
Now, you mentioned Scalia’s assertion that constitutional interpretation should be focused on deriving “original intent.” That’s not quite right. Scalia’s actual position is that interpretation should be focused on the *text* of the Constitution, and that historically appropriate resources (such as old dictionaries) should be used to derive the original *understanding* of what the words meant. In other words, even if the framers MEANT one thing, if they WROTE another, it’s the writing that counts. That rule is similar to contract law.
I think that proposition is respectable — but Scalia is not a respectable judge. He, in fact, has violated his own principles countless times in the pursuit of a conservative social agenda. (E.g., he recently engaged in commerce clause acrobatics to strike down state laws permitting medicinal marijuana. I can’t remember the case.)
In any case, you suggested that it’s impractical to look to an old document for guidance. You asked: “How exactly does one determine the intent of men who are 200 years dead?” The thing is, that kind of question is a red herring. These disputes rarely concern areas where the text of the Constitution is so ambiguous that we can’t determine what it means. Rather, these disputes have to do with court decisions that seem to defy what is written.
For example, Article I contains the Commerce Clause, which provides that Congress has the power to regulate “commerce … among the several states….” It’s pretty easy to determine what “commerce among the several states” means. The problem was not ambiguity; the problem was that FDR’s freshly packed court didn’t like what it meant. So, the court invented an entire hierarchy of rules that, basically, said: “Congress can regulate anything that relates even theoretically to some tangential aspect of interstate commerce, even if in a miniscule way.” Sounds different, right? Post-FDR, a family that grows vegetables in a garden for the family’s own consumption (not for sale) is engaging in “interstate commerce” subject to federal regulation. That is most assuredly a large and substantive change to the Constitution, and one that bypassed the built-in procedural safeguards to amendment. As a result, the character of our government has forever changed.
Pragmatist
@petted: My point has nothing to do with Marbury v. Madison. As I said a moment ago, I think you’d be hard-pressed to find anyone these days who would say that the judiciary shouldn’t have the power to invalidate legislative enactments that violate superior Constitutional authority.
My point relates to an entirely different matter, which is the *manner* in which the Constitution is “interpreted” in order to enable certain agendas. That practice really got its start after FDR threatened to tamper with the size of the Supreme Court. After that, the court just rolled over and “found” ways of “interpreting” the Constitution to give FDR what he asked for. That practice is the one that is so controversial.
@orpheus_lost:
I wasn’t specifically referring to Roe v. Wade, but it’s a good example. If you’ve ever read Roe, you’ll notice that the court spent a majority of its time far, far, far away from the task of constitutional interpretation — which was supposed to have been its only job. Rather, the court reviewed various medical evidence and crafted a surprisingly specific set of rules based on the trimester of a child’s development in utero. Those rules, it turns out, were negotiated among the justices prior to the issuance of the ruling.
This put the court in the position of behaving like a legislature — but a legislature whose enactments are nearly impossible to challenge, and a legislature that was never elected by the people. For both of those reasons, Roe v. Wade remains a hot-button issue. Had the court adhered to the Constitution, it would have said: “Gee. The Constitution doesn’t really address this issue. It’s up to the other branches to craft the rules, or to the People to start the amendment process if they feel this should be a matter of constitutional rule.”
You picked a good example because it’s ethically a very delicate issue. It’s not “Freedom X vs. Religious Wingnuts.” It pits an adult’s bodily autonomy against a child’s life — no small conflict. When the Supreme Court stepped in and closed off this issue — arbitrarily, with little authority to do so — it guaranteed decades of controversy and unrest, which we are still seeing.
The Gay Numbers
@Pragmatist: The Court is meant to be a check on the legislature. Just like the Congress is meant to be a check on the executive powers of the Presidency. In the context of what courts are suppose to do, it’s odd to argue that they are taking on a legislative function when there job is to precisely do that by checking the power fo the legislature. I do not see how in practical terms one accomplishes judicial review without doing so.
You make the argument worse for Scalia. Not better. I was giving him the benefit of the doubt with the more possible choice. You also do yourself no favors with contract law because unlike Contract Law, the Constitution was left intentionally broad in its language. This again requires a knowledge of history. The foundes could agree on shit. So they came up with a documens where you can feel in the blanks later. Ironically, this is the same thing that happens with contract law. When you use vagues- guess who tells you what the terms mean?
Incorrect regarding my poistion on prior documentation. What I said was that this can not be the only tool in the toolbox because of the inherit limitations involved. There is a reason why we use precedent. That’s so we can use historical views. But, that can not be the only tool or else quite frankly you end up with absurdities.
You also have no idea what you talking about regarding the Commerce Clause. None of it is “pretty easy.” It’s only easy if you are idealogue, which I am not. It’s only pretty easy if you do not undersand stare decisis.
Pragmatist
@The Gay Numbers: I don’t like the tone you’re taking; it’s insulting and I have better things to do with my time.
The branches exercise their “check” functions by acting within their own scope of operation. For example, the executive has a check on the legislature by a simple veto. The veto is not a legislative power — in fact, when President Clinton sought the line-item veto, it was denied as an attempted exercise of legislative power.
In the case of the judiciary, the “check” is similar — the judiciary can strike down a law that violates superior authority, or it can uphold it (if there’s no violation). Note, the judiciary doesn’t have the latitude the executive does to veto merely for disliking a law. (Arguably the judiciary DOES that, and more, but it’s not supposed to, structurally.)
I don’t see how I worsened the case for textualism by observing that it is different from determining the intent of dead legislative bodies. It’s spurious to think of a group of 535 people as having a collective “intent” — but it’s quite logical to think of a written document as having a relatively objective meaning (within limits) at a particular time. To argue otherwise is to argue that we can learn nothing from historical texts because we don’t know what they meant when they were written — a clearly fallacious idea.
I agree that the Constitution was written in the broadest strokes, and that adjudication of specific constitutional issues requires interpolation. But observe that interpolation between two points is quite different from moving the points altogether!
Again, I don’t like your tone. There is no call to tell me that I “have no idea what you [sic] talking about regarding the Commerce Clause.” First, I do know a thing or two about the Commerce Clause — I studied it at Stanford Law School, where I aced my con law course. Second, many respected constitutional scholars will tell you the same thing, i.e. that the Commerce Clause was stretched well beyond its original meaning by novel concepts such as Wickard aggregation. Third, that kind of statement in what should be a civil discussion is just rude.
Sammylovver
For all the historical and judicial terms thrown out by The Gay Numbers, it seems as though Pragmatist has a firmer grasp on both Constitutional law and the judicial process. Of course, I apparently do no know what I am talking about and am simply “spouting ideology.”
It seems as though The Gay Numbers keeps coming back to the point that the Court is suppose to act as a check on the other branches of government. I would like to see a legal document that grants the Court the power to legislate. As Pragmatist pointed out, the Court has both a right and an obligation to safe guard the Constitution. However, it is not they who invalidate those laws. A law that is passed that is in contradiction to the Constitution is automaticly invalidated because the Constitution is the supreme law of the land. The S.ct. is simply tasked with recognizing when that takes place, not to further interpret statute and read their own interpretations into it.
Someone mentioned how the Founders had no problem with Marbury v. Maddison (although many did and tried to reverse that process). This was because many saw the Court being able to uphold the Constitution was nessesary to conduct their judicial functions. Had any of them known what the post-FDR Court would look like they would have altered the system.
The Commerce clause was indeed considered simple at the time. However, our modern society has progressed in such a way that a 200 year old document does not cover all the issues. Yes, it was intended to be left vauge only because it was intended to be limited. They provided a process in which we, the people, can update it and as Pragmatist said this would clear up many issues such as Roe.
No one is denying the Court has handed down some very just decisions that protect basic rights but they can only protect those ones that are evident. It is our responsibility, not just as the gay community, but as citizens, to make sure our rights are protected. The Court can help as they may, but lets just hope that more states take matters into their own hands.
strumpetwindsock
@Pragmatist: @Sammylovver:
I can’t speak for TheGayLover, but my argument is that the court doesn’t exactly have the freedom to rewrite law at their whim.
Like an appeals court, if they are activist, it is within very strict parameters and based on technicalities.
Their role is primarily technical – to determine if a law is workable, and consistent with existing law. They can’t make a decision based on whether they agree with its content or not – at least not here in Canada.
I mentioned the case of our supreme court which ruled recently that the country could in fact be dismantled by a simple majority referendum. Their preference? I seriously doubt it. Legal? it seems so.
As to Scalia’s question of the intent of the original draughtsmen, If it is strictly a question of semantics that is a perfectly valid concern. I can appreciate that archaic words may not have exactly the same meaning as they currently do.
But the body of the law has to be alive or it serves no purpose whatsoever. Paying slavish devotion to 200 year old law in a modern world makes about as much sense as deciding cases based on the Book of Deuteronomy.
Pragmatist
@strumpetwindsock: Hi, Strumpetwindsock. Just wanted to compliment you on your name — I didn’t catch the joke until now. 🙂
Anyway, I’d defer to your understanding of Canadian law, obviously, because I don’t know the first thing about Canadian law.
In the U.S., however, it’s commonly understood that some judges reach their decisions by consulting their own policy preferences. Now, you’re right to say that courts can’t issue an opinion stating: “His Honor thinks employers should have the right to fire employees at will for their appearance, therefore it is so ordered.” They couldn’t really get away with that. But it doesn’t mean that the same thing doesn’t happen by a more circuitous path. Specifically, it’s pretty apparent that there are judges who figure out what they want the ruling to be, and then reverse-engineer the legal analysis to fit the desired ruling.
For all his talk about procedural integrity, it turns out that Scalia is quite guilty of this himself (which is why I say he’s not a respectable jurist). It’s obvious when you scrutinize many of his cases together, and find that the rules of analysis are inconsistent from case to case. As in:
Case 1: Scalia says “3 + x = 7”
Case 2: Scalia says “-5 – x = -7”
Now, as for your point about the body of the law being alive. I certainly agree that legal standards have to be updated as times change. But, how should that happen? And which laws need updating, and when? The U.S. Constitution was designed to be somewhat resistant to amendment. It contains an amendment process that requires a substantial majority support from the states, among other things. That process, onerous as it may be, is available to update the Constitution to reflect modern circumstances.
Moreover, bear in mind that not every change of the times necessitates a change in the Constitutional framework. After all, the Constitution never was intended to serve as a glorified version of the U.S. Code (the predominant — and enormous — body of statutes in the U.S.). Rather, it was only supposed to lay out the structure and limitations of the government, and later, to clarify the body of rights already reserved to the people. When you think about it, those functions (structural design and individual rights) shouldn’t be in too much flux, for stability’s sake. For example, we shouldn’t need to revisit whether there is a right to free speech, just because we live in the Internet age as opposed to the age of the printing press.
strumpetwindsock
@Pragmatist:
Understood (and likewise, I know there are differences in the framework and application of U.S. law than up here).
My point was theoretical actually… not something that should hang on the specifics of our respective systems.
If a law is so arcane, or if its usage has changed so much that that jurists have to dig and translate to get at it’s true meaning, it begs the question as to how functional it really is. On one hand there may be some radical gem hidden there, but it does beg the question.
The people who built our countries certainly knew what they were doing, but I think they expected us to expand on with their work, not treat them like gods and run to them to solve all our questions. Their intent was based on their world-view, which is very different in some ways than our own. It may be enlightening, but it may also be completely irrelevant or unworkable in the modern world.
orpheus_lost
@Pragmatist: This is why you and I will never agree on the rulings of the Iowa court or Roe v Wade. You are much more socially reactionary than I am and you believe that the constitution is far less elastic (a term the founding fathers specifically used in describing the document) than me. Because of this, trying to discuss the issues at hand is useless because neither of us is ever going to change our minds. The very fact that you think that Roe v Wade was improperly decided, and yes I have read the full decision, tells me that you and I have very different concepts on what is judicial activism.
I also notice you didn’t bother to mention Hedgepeth v Washington Metropolitan Area Transit Authority in your response. This tells me you either support the decision but are afraid to admit it in this forum or you do not know of it, in which case I think you should look it up for an example of REAL judicial activism.
The Gay Numbers
@Sammylovver: @Sammylovver: I wish extremist would stop confusing their nutcase beleives with reality. Just because you believe someone else right does not make you orthem right. That’s all I have to say to your nutcase postings.
The Gay Numbers
@orpheus_lost: The problem with this conversation is that you are talking to someone who is a textualist much in the same way that a Christian who is a fundamentalist is a textualist. They will never ever admit to anything that requires them to leave their closed system. The key difference, if you will notice, between say my argment and there is that I say that plain meaning is part of how we should view the Constitution. However, I mean meaning as a term of art as the founders meant it to be. That’s why we have the Federalist papers, history, contextualization, precedent and multiple other factors that are in the mix, including new fact patterns that no one could have thought at the time. A practical example of this is the FCC and the regulation fo the airwaves. No one could have predicted it’s existence. And , yet they would hold con law to the absurdity that they did. There are additional absurdities that their closed system produces just like the Chrisitan fundamentalist arguments over “well evolution is untrue because God created the world 7000 years ago.” Those absurdities include understanding free speech- what do you do with the guy who yells “fire in the movie theatre” since that’s not clear from the plain language? What about guns? In actuallity, the Con Law in its plain meaning is about militias-what should we do there? These games that they are playing waste your time. My advice- not that you need to take it- is to move on. There is a shelf life on all of this anyway.
The Gay Numbers
@strumpetwindsock: The truth is so did ours. THe people are talking to are playing revisionist history to justify their own belief systems. a) The decision to allow judicial review of Con Law was decided at the time of the founders of the Constitution. If they disagreed with it, they could have passed amendments to not allow it. Notice they do not mention that? Therefore, the action must have been the intent of the great majority of them at the time. b) They do not go into the papers surrounding the documentation of the Constitution- ie, there ar emultiple sources of the time like the Federalist papers Among others. There are the writings of the individual members such as Thomas Jefferson (whom I iknow about all too well since I went to the University that he founded).
My point is that they are leaving out parts. That’s the key difference. My view does not require a denial of the importance of looking tot he language for a starting point. But, then their position does require denial. Denial of surrounding documents. Denial of what the people at the time were saying. Denial of the subsequent history. Those are just a few. But, you are dealing with something that it entrenched belief. Like I just told the other poster the analogy is like talking to a fundamentalist. They view the text as literally true rather than as meant to be intetionally vague, and intentionally expansive. More than this, the document was also things like I have told you like intentionally balancing of various powers. The founders- the one thing that united them- was their distrust of any of the 3 institutions working alone. For example, the Presidency was meant to emmulate the King. But, there was a legislature meant to represent the interest, at the time , of land classes or the middle class.
The judiciary was meant to be anti-democratic by representing the aristoratic principle- or to protect the minority from the will of the majority. At the time, this was not surprising because the founders were not just under threat of the King but the birthing of multiple branches of Protestantism that each sought to suppress the next version of Protestantism. So they created laws, and a judicial process meant to be free from those threat so that this judiciary could protect a minority religion from the behavior of the majority religion. There were also the issues of political ideas. The founders were divided . They wanted to protect their own political interst. Jefferson,f or example, saw the world in a much different way that George Washington, amongst others.
Many of the arguments you see amongst American conservatives, despite their claim of orginal intent or textualism, turn the goals of the founders on their head.
You do not have to believe me. If you ever get a chance, you should check out the various books about the intellectual history of the United States. It’s one of the reasons when I got to law school I laughed at the conservatives there. The reality is that the picture of the time was a big fat mess, but they wanted some general frame work in which to work.
I wish it could find it now. We think of politics as nasty in the U.S. now, but it was nothing like the politics before, during and after the ratification of the Constitution. To then claim that was was written then was the entirety of what was meant- when that language was left vague term of arts is why I do not have much patience for the conservative arguments on Con Law. It’s b.s. meant to protect the status quo rather than reflect the truth of what historical happened or what it was meant to do. Again, I return to the biggie- if they had a problem with judicial review, they were all still around when it came about,and could have amended the Constitution to say no to judicial review. That they did not, says all.
I have no idea if all is clear from what I wrote because I wrote this quickly. Let me know if my post is confusing.
Pragmatist
@orpheus_lost: Now, that’s silly. Nobody who knows me would label me a social reactionary. In fact, I think I’m rather ahead of my time on social issues, even viewed against the backdrop of the GLBT community. (Every time I engage on sexuality topics on forums like these, I encounter resistance form people who are beholden to the status quo.) I’m very liberal, and rather “out there” too.
My social policy preferences have nothing to do with my general philosophy about the structure of government and the role of the judiciary in it. Those are based on my own reading of the Federalist Papers and other historical texts, as well as countless court opinions and scholarly articles.
From what I’ve seen here, I think you’re too quick to slap labels on people who have thinking different from your own, perhaps so you can set them aside without actually considering their viewpoints. That’s its own special kind of open-mindedness, I guess. It’s actually a bit too simplistic to tell someone, “I can tell you’re an XYZ because you think Roe v. Wade was improperly decided.” I mean, really, that’s a complex decision and it’s got even the leftiest of constitutional scholars divided as to its analytical integrity. See the world in a few shades of gray, why don’t you?
As for Hedgepeth, I don’t remember that case. I’d be happy to read it, but I haven’t done that yet, so I can’t offer an opinion. But if you think the court violated the letter of the law in order to achieve some regressive, right-wing result, well, I’m sure you’re right. That happens all the time, which is precisely my point.
Pragmatist
@The Gay Numbers: Wow, I’m getting progressively less impressed with these rants. From what I see here, your position is as follows: (1) I’m a right-wing/religious/flat-earth wacko; (2) the founding fathers supported judicial review and checks-and-balances.
Well, #1 is wrong. And it’s kind of embarrassing for you to draw that kind of connection when it’s flatly untrue. You can do better than that.
As for #2, it doesn’t really have anything to do with my argument. Judicial review is not a controversial concept — it’s just a recognition that an inferior law conflicts with a superior law. Checks and balances are not controversial, either. Nearly everyone is happy to concede that the branches have their own overlapping domains of power that, ideally, help to prevent one branch from taking too much control.
My argument deals with the manner in which courts attempt to interpret statutes. (The Constitution is a statute, by the way. Just a very special one.) Statutory interpretation must be based on the text of the statute, or else it’s based on nothing but whim. If Congress passes a law that states “income above $70,000 shall be taxed at 17%”, do you really think the Courts should lay on “judicial gloss” to “interpret” that number as 13%? No, of course not.
Nobody disputes that there are tons of ambiguities in any statute, and many more in the Constitution (by reason of its short length). Does that mean there is no objective meaning to be gleaned from the document? If so, why reference it at all?
John in CA
@The Gay Numbers: Textualism is essentially fundamentalism. It removes human agency from the equation. This is the same line of reasoning that says if a tree falls somewhere in the jungles of Borneo, we can indeed ascertain that it has fallen without anyone there to document the event. How is that any more logical than saying “a wizard did it” has never been adequately explained.
Conservative ideologies tend to view the world in very rigid, binary terms. So when conservatives read important documents, they have the unfortunate tendency to assert that the text is somehow “sacred” (or otherwise divinely inspired). In this conversation, I can already point to several instances where we have people refer to the U.S. Constitution as if it had a will that’s independent of our biases, our languages, our politics, and our aspirations.
But judges are not the involuntary instrument of some otherworldly power. They have a mind of their own. They have the ability to evaluate scientific data and other forms of empirical evidence. It is absurd to suggest that they should – or even can – somehow store that knowledge somewhere else while they’re doing their job. Try as he might to claim otherwise, Scalia cannot “unlearn” what he thinks he already knows. The difference between him and a Breyer or Souter is that he’s uncomfortable with the idea that he’s biased. So, he has to fudge and twist his way into thinking he has exclusive access to some higher authoritative truth. A truth that, of course, exists only in the text. Whereas the more liberal justices have gone way beyond caring about ideological minuiate of that magnitude.
As great as the U.S. Constitution is, I’ve yet to see it break out of the glass casing at the Smithsonian to hit Nancy Pelosi (or Newt Gingrich for that matter) with bolts of lightning whenever the House passes legislation of questionable constitutionality. Now, that’s some wizardry I’d like to see. And no, Justice Scalia, I’m not just going to take your word for it that it meant to do that through you.
Pragmatist
@John in CA: Hi, John.
I’m not sure if you’re referring to me, but if you are, I think you’re missing the point I’ve been trying to make. I don’t believe the Constitution is divinely inspired, perfect, sacred, or anything else. I think it’s nothing more than a written protocol specifying how the system operates. It can and should be amended as its defects and outmoded aspects become apparent.
The point about textualism, or at least *my* point about it, is that it’s basically the only interpretive philosophy that can hope of imposing any objective, stable, publicly knowable limits on what the judiciary can do.
Why would we want to have objective, stable, publicly knowable limits on judicial power? Because the judiciary’s powerful! And it’s also independent. And its operation is cloaked in a great deal of secrecy. (The process by which the supreme court justices horse-trade their votes and positions ultimately determines the content of the constitution, and yet you’ll rarely hear an account of how the deal went down.) Without limits, the law itself becomes subjective, unstable, and secret — three adjectives you don’t want to hear in connection with a legal system!
Practically speaking, none of this would matter much if there were other limits on judicial power. If judges were only appointed to 10-year terms, for example. Then, although the law would still be subjective, unstable, and secret, any specific damage would be short-lived and correctable. Unfortunately, under the present system, a case like Dred Scott v. Sandford (a perfect example of so-called “activist” jurisprudence) can require a massive effort to undo.
strumpetwindsock
@Pragmatist:
I’m not sure if your “percentage tinkering” example is an accusation against judicial activists. In my understanding (again, at least here in Canada) that is not something they’d be able to do arbitrarily – only if there was some sort of constitutional tax limit.
Just as many appeals court can only look at adherence to procedure, but not reopen a case, I don’t think jurists can tinker with laws just because they don’t like them. Of course there are cases where bias has influence (I looked at Orpheus’s Hedgepeth case), but even then they don’t have free rein, except to turn something down outright.
As I said further up, I think judges “making new law” does not always have an agenda behind it. Often there is a gap in the law which needs to be filled. In the “three parents” ruling in Ontario last year, they said it was based on a fundamental family law concept – “what is best for the child” (I heard that on the radio, not in this related article):
http://www.cbc.ca/canada/toronto/story/2007/01/03/twomom-court.html
Even so, there were many who accused that court of judicial activism – undercutting the foundations of the family.
strumpetwindsock
@The Gay Numbers:
And speaking of checks and balances put in place by our founders, your electoral college is an good example of a vestigal tool – some would say an anti-democratic one.
Ditto our senate, which like the British House of Lords is appointed, not elected. Traditionally they do not block passage of Bills, but if not, why does the house exist at all?
Again, examples of how differently politicians saw government 200 years ago.
TANK
Well, since this has shifted to ways in which the constitution is interpreted, a criticism of originalism, specifically, original intent should be relevant, then…as it’s based on a very crude understanding of natural language and logic.
It presupposes that the constitution and words themselves in contexts have unambiguous, fixed senses and references and clearly defined applications in their interpretation using dictionaries and inferences (gap fillers, largely cashed out in terms of a host of inescapable biases and values) to best conclusion. The failing with that is that a purpose of the courts is that it is supposed to uphold the consistency of the relevant documents and normative valuations infect all aspects of that, even when constrained by precedent and interpretation of the application of precedent. So given that words and documents like the constitution don’t have fixed and unambiguous meanings, it seems a particularly offensive joke to suggest that ANY interpretation isn’t a form of “legislation”. So if all you mean by legislation is interpretation of the law and a precedent in its application in resolving a case, then you simply fail to distinguish a legislature from a judiciary in any relevant sense. Simply insisting that it creates NEW laws where there weren’t laws before seems to be ignorant of what implication means…LOL!
That joke is founded upon a prayer and a hope that the flexibility of, say, the constitution isn’t limitless in logical space, and disdain for the organic understanding that has been a case of historical record. It’s groundless. What isn’t groundless is that some interpretations have more throat clearing to support them than other interpretations in terms of precedents that are a part of that interpretation. Nothing more. Is it a free for all? No, there’s such a thing as more likely interpretation of meaning, but no such thing as exact meaning of a sentence found in a natural language.
The reason why ordinary language philosophy failed so dramatically is because people literally don’t know what they’re talking about most of the time, and so finding out what they do mean (nothing or abject falsity) just doesn’t settle the dispute. It’s actually kind of a joke…given the vagueness of natural language, and semantic underdetermination (both provable with…oh, I dunno, good old logic). The interpretation of substantive rights was predicated on the inherent undetermination of meaning, and the real fraud perpetuated by those who think that the SC went too far under FDR is their lack of applying that to all decisions throughout its history starting with marbury v. madison.
Additionally, we see the choice of words here as not being uncontroversial in framing the cherry picked example of “judicial activism” (once again, I don’t see a coherent definition being offered for such a thing…or a coherent example) as roe v wade (I imagine doe would also be included), in which it is framed as the autonomy of an adult vs. the life of a child (defining the fetus as a child). That says a lot about this person’s preferred interpretation.
John in CA
@strumpetwindsock: The peers can have their say. But the elected representatives always win in the end. The House of Lords has been effectively subordinate to the House of Commons since 1911. Legislation that originates in the Commons (“C” Bills) can be pushed through without the Lords’ consent on the third try.
A similar provision exists in Spain, where it was effectively used in 2005 to bypass the aristocracy’s objections to same-sex marriage.
The Nordic countries did away with their versions of the House of Lords several decades ago. What’s amusing about that is, depending on which law professor you ask, actor Jake Gyllenhaal might actually qualify as a “hereditary peer” in Sweden because of his noble lineage. Which means if the Swedish Lords were still around, he could’ve flown to Stockholm to participate in last week’s marriage vote.
TANK
@John in CA:
National archives.
John in CA
@Pragmatist: I wasn’t referring to you in particular. But since there are only two or three conservatives posting on this thread, I won’t deny that your being part of “the group” was implied. Tank does raise a good point though. I think the notion that an objective reality (outside of interpretation) even exists has serious ideological, legal, and political implications.
I’m not sure where I come down on that. As a matter of practicality, we have to employ concrete metrics. But I accept that these measures are often flawed and arbitrary. I’m also convinced that objective versus subjective is a false dichotomy. A metric can be accepted as objective by some. But under different circumstances, it might be viewed as completely biased by others. Even with a concept like “murder,” you’re going to have vastly different interpretations of what that means when you start talking about abortion, warfare, and what not. A dominant reading might hold such sway in the United States that it is viewed as “objective.” However, go to another country and everything changes.
John in CA
@TANK: Yes.
For some reason, I always thought the archives were a part of the SI. But apparently they’re an independent agency.
Pragmatist
@TANK: It’s a fun philo exercise to say that because language has inherent ambiguity, any attempt to fix objective meaning on a piece of language is futile. It’s kind of like the ol’ math shtick whereby a man takes a series of steps toward a $20 bill, decreasing by half each… if he’s a mathematician he never reaches the bill, but if he’s anything practical he just bends over and picks it up. Har, har.
In reality, language is like that. It may not be possible to fix definite meaning on a piece of communication with logical certainty. But since when did a lack of theoretical certainty require nihlism? To a reasonable degree of certainty, we can determine what a communication means. Even a law.
If there’s a red sign in front of a parking space that reads: “No parking between 6pm-10pm,” what should a driver do? Park in the space, figuring that the sign could defensively have been referring to the sidewalk behind the sign?
You’re attacking a straw argument by invoking the “language is just so darned slippery we can’t ever rely on it” trick. I’m not aware of a single legal scholar who thinks a court doesn’t legitimately create law when it is confronted with a statutory application that is not obvious. The question is whether some courts read the law obtusely so as to find room for discretion, or whether some courts just disregard obvious commands altogether.
I don’t know why the participants in this thread are so insistent on denying that that happens. Believe me, I had my share of very left-wing law professors. Most of them rather openly acknowledged this simple fact. The real difference is not whether it happens, but whether you think the benefits (potentially quicker social change, for example) outweigh the costs.
On that question, I’m actually agnostic — I don’t know. Empirically, I’d say we’ve had more good decisions than bad ones, and overall I think the government has adapted to economic changes more fluidly than if it had had to operate within the actual constraints of the Constitution. But one would be foolish to pretend as if there were no trade-off, as if there were no alternative.
Pragmatist
@John in CA: I’m not a “conservative” by any current, common American understanding of that word, so I’m a bit amused to be tossed into that category. Really, it’s bad practice to attribute a label to someone merely because you’ve observed one dimension that seems to fit. (I suppose this is why some straight people think I’m gay, and why some gay people think I’m straight — has none of them heard of a bisexual?)
Anyway, I digress. I’m getting tired of keeping up with this thread, so this will probably be my last post to it. Please see my my post above about the absurdity of taking theoretical uncertainties too far.
Interstate Commerce is a classic example of knowable limits having been crossed for a desired purpose. Of course a family that grows vegetables in a home garden, for the family’s sole consumption, is not engaging in interstate commerce. But the Supreme Court said they were, because home consumption would have a “substantial effect” on demand for produce grown across state lines. And the “substantial” effect, it turns out, can be proved just by positing a miniscule, theoretical effect — the family needn’t actually affect interstate commerce in any measurable way.
By the same reasoning, the Supreme Court could have ruled that masturbation is interstate commerce because it substantially affects the market for condoms made in Alabama. To my ears, that’s a clearly ridiculous proposition. Are there actually people in this thread who’d buy it any other way? If so, I’m baffled.
John in CA
@Pragmatist: Of course it is a ridiculous proposition. In fact, I’d say it is little more than a red herring. And I’m not talking about the Supreme Court decision either. You can masturbate without condoms. But you can’t eat without food.
In order to provide sustainable income for farmers, to prevent starvation, and to make sure key supplies are stable – Congress has a vested interest in making sure prices for basic staples and “everyday” products are consistent. The quotas laid out by the Roosevelt Administration was in response to rapid shifts in the price of tobacco, oil, salt, corn, wheat, cotton, and rice during the Great Depression. Such shifts were the cause of great anxiety and hardship for many Americans.
By giving Congress the authority it needed to put a stop to the roller coaster of the market, the Supreme Court merely accepted the reality of the economic crisis for what it was. And yes, had the court allowed a single farmer in Ohio to grow more than what was legally allowed (regardless of whether he planned to send it out-of-state or not), it would’ve thrown the whole notion of national price controls into chaos and negatively affected farmers in other states.
orpheus_lost
@Pragmatist: I wasn’t trying to insult you by saying that you are a social reactionary, but from the sounds of your arguments here, you are one. Perhaps you aren’t putting forth the real you, I don’t know.
Regardless, you do make some claims that just aren’t true. By saying that even the “leftiest” scholars are split on Roe v Wade, you’re making a statement that just isn’t true. Its much on the nature of saying that scientists are split on the reality of global warming. Sure there are some scientists who cast doubt but they tend to work for the oil companies.
Lastly, if you’re going to suggest I made statements that I never typed, then we really can’t have further conversation. I never said you were anything specific because of your stance on Roe v Wade, I said we have a different view on judicial activism. If you can’t be honest (in a forum where its very easy to check actual statements, by the way) then what’s the point in trying to discuss this with you? I think The Gay Numbers is right.
strumpetwindsock
@TANK:
Let me work backwards through your argument:
I don’t think there IS a set definition of judicial activism because much of it is a matter of perception (just like conspiracy theories). At the root it is an accusation that judges don’t have the authority to make certain decisions, but it also implies an agenda which is not always there.
Sometimes words are significant. The best example I can think of is the New Testament word for “sin” which has been interpreted as “evil”, but which actually means “not perfect”. Unfortunately given the common usage, most fundamentalists disregard the original meaning of that word. I do not expect they will change.
And the assertion that any decision constitutes legislation… Perhaps, but that’s how precedent works, and like it or not, some laws follow naturally from others, and others create conflict which must be fixed – especially rights cases. There are plenty of cases in which legislatures react to court decisions by draughting new laws, so it’s not always an assault on democracy. It is one of the ways in which the law works.
Like it or not, that’s how we got marriage equality up here. The courts decided; the government could have fought it, but they accepted it. Had they not been pushed by the courts showing a major discrepancy in the law that change would not have come anytime soon.
@John in CA: I know. I just didn’t want to bore everyone with an off-topic political science lecture
We have the same tradition here (the senate cannot slow down legislation) even though the senate or Governor General (who signs on behalf of the Queen) could stop it cold.
Actually the governor general’s role is a good comparison to the role of judges. We had a government crisis in January in which the governor general – an unelected figurehead – could have made a decision to bring down the government and allow the opposition to form a government or trigger an election. She had to make her decision within very strict parameters though (aided by a battery of constitutional advisors). She certainly did not flip a coin.
TANK
@Pragmatist:
“It’s a fun philo exercise to say that because language has inherent ambiguity, any attempt to fix objective meaning on a piece of language is futile.”
Objective meaning don’t mean whatcha think it do. LOL! Unless, of course, you’d like to specify exactly what you think it means, as you’ve used it a lot…as in textualism being the best hope for an “objective criteria” in interpreting the constitution.
“It’s kind of like the ol’ math shtick whereby a man takes a series of steps toward a $20 bill, decreasing by half each… if he’s a mathematician he never reaches the bill, but if he’s anything practical he just bends over and picks it up. Har, har.”
No…it’s nothing like zeno’s paradox. That deals with motion in space. “Look”, saying that we need to be pratical and make a decision as to the meaning of the text is one thing, saying that the meaning is established or appropriately established to render consistent decisions presupposes the case at hand by assuming that your interpretation deserves some favored status without providing an argument.
“In reality, language is like that. It may not be possible to fix definite meaning on a piece of communication with logical certainty. But since when did a lack of theoretical certainty require nihlism?”
No, in reality it’s not like that. The best we can hope for is interpretation to what we believe it means, or even most likely meaning within an inferential web that is indefinitely extended. What it comes down to is your unargued for…and unprincipled, at this point anyway, opinion that there’s a limit. How is that not completely arbitrary? And once again, just saying that it needs to be arbitrary to render a verdict doesn’t speak to what, specifically, constitutes overstepping the arbitrary marker distinguishing good decisions from bad. No, that actually requires an argument that’s better than the opposing arguments that offer for other meanings.
And nobody’s endorsing nihilism but you.
“To a reasonable degree of certainty, we can determine what a communication means. Even a law.”
But even reasonable here presupposes that there’s an archimedean point (certainty) upon which we can determine approximately (and measure our interpretations against), the meaning of the law…no one’s disagreeing that we can approximate the meaning of a text or law or opinion, but there’s no flesh to your assertion that originalism and the opinions that “ought” follow from certain originalist theories is even a coherent notion.
TANK
“You’re attacking a straw argument by invoking the “language is just so darned slippery we can’t ever rely on it” trick.”
No, I’m saying that there’s no principled difference being asserted between the body of theory called originalism, and the elastic and compromising understanding of the constitution as a living document.
“I’m not aware of a single legal scholar who thinks a court doesn’t legitimately create law when it is confronted with a statutory application that is not obvious.”
Ronald Dworkin.
“The question is whether some courts read the law obtusely so as to find room for discretion, or whether some courts just disregard obvious commands altogether.”
I think you believe it’s really as obvious as a stop sign. But even then, that’s an interpretation to best intended meaning given a fixed, specific technical application (traffic signs).
TANK
And thankfully, I’m not a lawyer…very little respect for that profession. I do, however, find the philosophy of law interesting to a limited extent.
strumpetwindsock
The most fundamental question here is not when and how the courts have the right to alter the law, and how to interpret The Word.
I think the assumption that law is more valid because it is made by a legislature is completely false. Politicians have far fewer legal constraints on their decision-making process, and far more arbitrary ones – like having to worry about getting elected.
Democracy does not abolutely mean the right decision, nor doe it automatically mean justice – look at the simple case of seven people who take a vote and decide to murder the eighth.
I can think of many occasions when I would rather trust the trained discernment of a judge than the biases of 12 peers.