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.

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).

“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.

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.

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.

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.

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.

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.

For some reason, I always thought the archives were a part of the SI. But apparently they’re an independent agency.

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.

National archives.

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.

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.

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.

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/toron.....court.html

Even so, there were many who accused that court of judicial activism – undercutting the foundations of the family.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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..

This is clearly unjust, and prop 8 should be destroyed!