Republicans & Conservatives: Archives

awesome article Miguel- i hope those on the other side that favor this particular decision in Massachusetts take your argument seriously. Last semester I had a professor who is one of the most famous liberal constitutional law profs in the country (Mark Tushnet), and he believed that our country would be better if we never had judicial review. One of his points was that liberals are supposed to be “populist”, but that they have turned upon those principles and pretended that everything was a “Constitutional” issue, and wanted the courts to decide instead of the democratic process. The title of his book was “Taking the Constitution Away from the Courts”, and his point was that the Supreme Court has taken the constitution away from the people, and that the people should take it back. I know that almost every liberal in his class agreed with him by the end of the semester.

Personally, I have not made up my mind on this issue. For example- I believe the 14th ammendment should apply to unborn children, so I cannot in good faith make the argument that Roe v. Wade was wrong because it was “Activist”, I think its wrong because it defined a class of human beings out of the law, much like what was done to blacks in the previous century. After all, say Roe went away and the people decided that unborn children werent human beings- that result would be just as bad as the one we have today. In fact, I think the point of the 14th ammendment was that the majority of the people dont get to decide who is a human being worthy of legal protection and who isnt. But do the courts?

Your arguments and those of my professor are strong ones, and this is something I need to decide upon. The judiciary definetly needs to not “make law”, but if the situation with gay marraige is an equal protection question with constitutional implications (which it probably is, in my opinion), the judges are simply doing their job as a restraint upon popular sentiments under a constitutional system. On the other hand, your suggestion that the court should not have done what it did in such a heavy-handed manner is well made. As you can tell, I am still strugling with this issue.

Interesting article.

I just worry you agree with Bush and his name-calling, particularly labeling some as “activist judges.”

Thanks for the source Misha! That is exactly the reason that I wrote this article in the manner that I did. I wanted both liberals and conservatives to respond to my thesis and give me other avenues to research.

Anthony, I tried a bunch of different words: active, overenthusiast, bug, crank, devotee, enthusiast, extremist, militant, monomaniac, radical, ultraist, visionary, zealot and aggressive. But all were either too nebulous or even more politically charged. I knew that that would rile someone up, because it has been used pejoratively by the right, and that is why I was reluctant to use it. But ultimately I thought it was the best word to describe what the court is when it decides issues before a significant debate has flourished. If you have a less charged word, I would very much appreciate the input.

Hep-hmm, stopping a vote count and appointing a candidate president even when he did not win that state?

>Oh I’m sorry that must be a different issue, right? Completely justifiable ofcourse for the Supreme Court to intercede in our elections? Here’s what I like, when it inconveniences you it is a brush fire to stamp out, when it takes our democracy away benefitting your party it has justification, lovely.

Mr. Cheney can have all the duckhunts with Justice Antonin Scalia he wants, just know that come November this is precisely why you republicans are going out. We were apathetic before in going to the polls but this time consider yourselves cooked, we will not allow it to happen again!

Don’t play bipartisan, we know better!

whoever- too bad the florida supreme court stepped in and ordered yet another recount first, basically making up law and subverting the will of the florida legislature. if you dont believe me, go read the dissent of the chief justice in that case (who is a democrat, by the way). You can argue that the supreme court overstepped the bounds of federalism, but in terms of judicial activism, what they did merely canceled out the judicial usurption of the legislative power perpitrated by the florida supreme court. Its amazing how the left conviniently forgets the actions of the florida supreme court when talking about the 2000 elections, its like it never happend. magic.

But lets not fight about what happend 4 years ago-why not respond to Miguel’s arguments on theory, instead of assigning partisanship to his motives and dismissing anything he has to say?

The founding father did a fair job of writing the constitution. But they were hardly perfect. After all, the Bill of rights had to be added right off the bat.

However you are ignoring the fact the all three branches have been making power grabs for the last 200 plus years. What about congress ignoring the provision stating they have no power not explicitly given in the constitution. The things they have passed under the pretence of “regulating interstate commerce” are absurd. Then there is the administrative branch with their bag of tricks. If the president doesn’t like a program he just don’t fully staff it or refuses to spend the money congress has mandated.

Power corrupts? I am shocked!

Misha,that count was not ‘state wide’ but of Palm Beach County (and a couple others) as petitioned by Al Gore. To negate it by it supposedly having a date of expiration, like on a carton of milk is rediculous. Gore actually won the state when it was all tallied. Is that not a usurpation of our democracy?

Does’nt this present itself as a slippery slope? If those justices were majoritively liberal and appointed a liberal candidate(even with a dissenting conservative, lets say) nepotistically giving one of those liberal justices daughter a high level position in the administration, you would just be able to let it go? You would’nt be furious at the process whether a fan of that conservative candidate or not?

(1) Bush won the “post-recount” done by florida newspapers to replicate the third recount the florida supreme court had ordered against the will of the legislature. see-http://www.cnn.com/2001/ALLPOLITICS/04/03/florida.recount/

“The Miami Herald conducted a comprehensive review of 64,248 ballots in all 67 Florida counties. Their count showed that Bush’s razor-thin margin of 537 votes would have tripled to 1,655 votes if counted according to standards advocated by his Democratic rival Al Gore. ” (interestingly, the only way gore would have “won” is if the florida court has accepted the tougher standard that republicans were pushing for. Then gore wins by 3 votes. But i assume you supported the looser standard that Gore pushed for, right? thought so)

(2) its not like there had not already been TWO counts of the votes already- what Gore wanted them to do is to keep counting until he got the result he wanted. Wonder why he only wanted recounts in heavy democratic counties? Your memory of this is rather selective.

(3) its funny that democrats wanted “Every vote counted”, but then got votes of thousands of absentee ballots from oversees by our men and women serving in the army thrown out on technicalities. I guess they want “Every vote counted” unless that vote comes from a group that traditionally votes for republicans (the military).

In any case, You really need to get over this. I understand you dont want to face reality, but under our constitutional electoral rules Bush won the 2000 election.

This may surprize you, but I actually think that it is wrong that our electoral rules allow someone who does not win the popular vore to win to become president- but that was a mistake by our founders, not the fault of the supreme court or George W. Bush. Again, its over. The voters did not select gore in florida- your guy lost the election. lets focus on the issues of the day, instead of retreading arguments which have already been refuted (especially given that if you HAD gotten yet ANOTHER recount, by the standard your guy demanded, you would have lost by even more; three times more).

It’s funny, if you are strictly conservative, you are a just and apt judge.

if you vote in favor of something more liberal, you are an activist who is making wreckless decisions.

These people made their lives in determining the law, and I respect them for that. The mass ruling, though controversial, was not in any way wreckless.

I’m not agreeing or disagreeing with the court decision, personally the only marriage i care about is my own.

However, calling them activists just cause you don’t like their ruling is foolish. Calling them wreckless, about an issue they have debated and mulled over for months and years, equally foolish.

Miguel, I disagree with your thesis right off the bat. The supreme courrt must have the power of judicial review. Without it, constitutional protections mean nothing.

“For better or worse the Court used to allow for a clear consensus or majority to form before making controversial decisions.”

The suggestion that courts should rule according to the people’s opinion is a distortion of the court’s purpose. The court’s main purpose, as with the bill of rights, is to protect the minority from the majority. The court must, therefore, make many decisions that are unpopular.

mdon860, from the example that I gave I did not suggest that the rullings of the supreme court should be solely subject to a popular vote. Instead, I meant that simply that the court is not allowing for a discussion to take place and that is undemocratic. The discussion in a democracy can be through direct votes, but also can be through the work of the legistlatures. You assume that I am against the outcomes of Roe v wade, and the mass ruling, but my opinion on those does not matter in the way I framed the argument. the Bush v Gore ruling is a bit different in that the supreme cour was created to rule on issues and complex as though. Considering that every newspaper has found that bush would have won by severl hundred votes, I agree that the recount should have gone on. if they had let the recount go on there would not have been the ongoing rhetoric from the left about how gore really won. I apologize if I forgot that instance, I will add it to the next paper I do on this subject.

Each of the three government branches were designed to have equal power.

Also, Brown v Board of Education of Topeka, Kansas was not the result of a cultural shift. It was the cause of a cultural shift. The ruling came down in 1954, a full two years before the Birmingham bus boycott. It was not a very popular decision.

All branches of the government, including the courts, are supposed to lead the people, not follow the people.

“Each of the three government branches were designed to have equal power.”

I’m afraid you are quite wrong. Federalist Paper 78: “This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power [1] ; that it can never attack with success either of the other two…”

And on judicial review: “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. “

In other words the will of the people, as codified in the Constitution, is to rule the judges. The Constitution is supposed to be changed by amendment, not judicial fiat.

By your quote, Sebastian, is it safe to say you support the courts overturning the Patriot act based on its abridgement of citizen’s liberties and freedoms from search and seizure without due process (meaning judicial review and warrant)?

By your own quote, you support what I said. You quote reads “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.” I never said that the courts are superior; only that they are equal. These judges have not been rewriting the Constitution; they have only been interpreting it. It is the executive branch that appears to be rewriting in recent years.

Sebastian, Miguel, it is the province of the Judicial branch to be able to interpret constitutional law, and to provide for remedies concerning it’s contravention. You paint your disagreement as one between constitutionality and unconstitutionality, but looking at the cases you bring up (or don’t), it seems more a disagreement of interpretational style and political alignment, than a real constitutional crisis. Political rhetoric, in other words.

Questions pop up, looking at this issue: Is the constitution the superior law of this country, or just another bit of legislation. If it’s not, then the legislature can add and remove powers as they please, including unwarranted search or seizures. If it is, then it doesn’t matter how good the intentions of those engaged in that legislation are, the constitution overrules it, and the judges of the lower courts, on up to the supreme court have both the power and the duty to rule against it.

Again, good intentions do not matter. The constitution must prevail. to make such decisions, the constitution must be interpreted. Law is made to be interpreted, not to sit around on a pristine shelf gathering dust.

The case in Massachussetts is based on the premise that there is not one law for one group of people, and another law for a different set. Sodomy laws were struck down on this basis, because they were no longer being enforced for both gay and straight people alike.

The Defense of Marriage act faces a different challenge: Full Faith and Credit. That is, it’s unconstitutional for the state of Alabama to tell you that your marriage in Kentucky doesn’t count. If you’re married in the eyes of the state of Kentucky, you are married in the eyes of Alabama, too, even if you couldn’t marry your spouse legally in that state. But the Defense of Marriage Act disavows that, allowing for states that don’t support gay marriage to not consider the homosexual wedding binding.

Can you see the constitutional problem? Well, substitute “mixed race” for “gay” or its synonyms, and you can see the trouble. It’s bad precedent, and that’s why everybody is nervous.

My opinion? Let gays marry.

If Homosexuals cannot be denied full faith and credit marriage rights constitutionally, then we shouldn’t go about twisting the law of the land just to do that. With only two to four percent of the population who are gay, it’s also not worth it to permanently amend the constitution.

I think all the attention we pay to gays and lesbians makes the social problem of them worse. It use to be it was not something the people really payed to much mind to out in the open. But in the effort to try and stamp out the problem, the conservative authorities of this country have done to this particular controversy what pouring water on grease fire does. They have inspired resistance from those who feel the sting of their supression, and made homosexuals a lightning rod for attention elsewhere. The moment being gay becomes a non-issue, it will sink in importance in daily life, and the media will drop it as a big subject.

I suppose states and localities could bar same-gender marriages at home, posing difficulties for those seeking marriages fo that kind, while letting people who can travel to whatever safe haven there is to wed. With that, both sides could be satisfied. Additionally, churches have never been obligated to marry those who do not fit their categories of acceptable marriage partners, nor to preach those marriages as acceptable. Consider Catholicism and divorce. The same attitude can be taken considering gay marriage.

I can understand the objections on both sides, but in my mind it is better to preserve justice in general, and let modern secular society have this one victory, than to compromise those rights for all. This is a nation founded by Christians, but it is also a nation founded by those who knew mankind’s limitations.

Here’s the supporting decision for judicial review, right here.

Marbury Vs. Madison, and the constitutionality of Judicial Review.

Stephen, I sincerely wish I had been able to put together as cogent and concise a treatment of judicial review and constitutional interpretation as you have just provided. Excellent perspective on the subject at hand, IMHO.

David, point me to the clause you think is worrisome and I would be happy to tell you if I would support it being found unconstitutional. I was unaware of warrantless searches in the Patriot Act.

Sebastion,

One problem with quoting the Federalist papers is you need to take the quotes in context. While Fed 78 says that the courts are the weakest branch in attacking the other two branches, it also states it has the least defense against them. But then comes the real kicker in Fed 78 that destroys the “activist judges” argument.
“It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”
In other words, according to Fed 78, the largest threat to the courts is from political manipulation by the other 2 branches.

Fed 78 further goes on to state “But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.”
So in reality, the courts aren’t controlled by the majority but their duty is to protect the constitution as written.

Is it possible for the courts to make bad decisions? Yes, Fed 78 admits that.

Does it mean that it is a bad decision simply because a majority disagrees with it? No. In fact the courts are there to help prevent the people and the legislature from making bad decisions that violate the constitution.

This raises interesting questions about when and why laws become unconstitutional. Is a law constitutional simple because it has existed for a period of time before being challenged? My opinion is no. The courts can’t rule on a law until it is challenged and brought before them. This requires some change in public opinion to challenge the law but doesn’t require a majority of public opinion to overturn it.

As for the gay marriage issue, it does raise some interesting conundrums. If it violates a state constitution then people outside that state really have no say in the matter. If the state does allow gay marriage then it raises the “full faith and credit” issue as Stephen stated.