May 17, 2004
The Boundaries of Equal Protection Jurisprudence and Gay Marriage
I am here in Massachusetts for the summer, so I am in the middle of a rather important event- the first state-sanctioned gay marriages are happening today. First, if allowing gay marriage was on the ballot, I would vote for such a measure (although if another option was to devolve marriage into a private-religious practice and allow civil unions for everyone, I would support that over any other measure). Yet, allowing gay marriage was never adopted by the people of Massachusetts, unless you count the following provision adopted in 1780 by a deeply religious people who would never have approved of gay marriage:
“Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”
The Massachusetts Supreme Court determined that the above words mean that nothing short of gay marriage is required under the Massachusetts constitution, regardless of what the current residents of Massachusetts think of the issue.
On one view, the Court has served exactly the function it is supposed to in a democracy limited by a constitution- it has upheld the principles of equality enshrined in the constitution against popular prejudice, ensuring that the rights of the minority, as well as the majority, are protected. To those who do see denying gay marriage as a violation of equal protection, this decision would seem to be correct and worthy of celebrating. Yet, it is not so simple.
Equal protection is not so narrowly confined. To begin with, any equal protection reasoning that requires gay marriage will necessarily require polygamy (all an opponent of polygamy would be able to do is play the same definitional games that gay marriage opponents play today). But this is not all- granting courts the broad latitude to decide that a practice long-enshrine violates equal protection gives them very broad powers because almost anything can reasonably be seen in equal protection terms. To see the completely pliability of the concept of equal protection, think about the argument that defenders of the Massachusetts Supreme Court make that the Court was only interpreting the Massachusetts constitution. It is clear that the reason, the ONLY reason, why the Massachusetts constitution “requires” gay marriage while the United States one does not is because there are more pro-gay marriage judges on the Massachusetts Supreme Court at this moment then there are on United States Supreme Court. I am not saying that either one is right- just pointing out an obviously observation.
Here is an example of equal protection reasoning that may better illustrate the dangers of allowing the judiciary to have free reign as to the meaning of equal protection. I believe that having a graduated income tax is as much a violation of equal protection of the law as banning gay marriage- and if I were a judge with the same lack of respect of the decision of the majority on such issues as the Massachusetts Supreme Court, I would strike down these laws. This argument may seem foreign on its face- but recall the $103,000 speeding ticket that a rich Nokia Exec. received in Finland based upon a graduated speeding ticket ticket system. Even the Finish, far less sympathetic to wealth that the U.S., were outraged at this, and the ticket was struck down to $5,245. I fail to see how taxing people based upon a graduated system in terms of speeding tickets is any more a violation of equal protection than taxing their income based upon the exact same formula. In both cases, the law is purposefully not treating people equally, making those of a higher income pay geometrically more for no better reason than they make more. Moreover, it is perhaps an even more plausible reading of the Massachusetts constitution that graduated income taxation is unconstitutional, as the right to “equally” possess property in the state is explicitly protected (whereas marriage is only protected by implication) . How would you feel about a Court who struck down the graduated income tax as unconstitutional? Would you feel disenfranchised?
The point of the above example was to show you what equal protection can (and perhaps should) be stretched to if we follow out all the logical implication of the promise of equal protection of the law that the various constitutions in the United States guarantee. It is true that if equal protection is not merely a hollow concept, courts need to strike down laws that violate it- or at least some such laws. The key example of this sort of decision was the Brown v. Board of Education decision, where a 9-0 supreme court declared that separate but equal violated the equal protection clause of the constitution. There is obviously a delicate balancing act that a court needs to take- I seriously wonder if a heavy-handed 4-3 decision in a divided state takes that balance into proper account.
So we have gay marriage today in Massachusetts and the sky is not falling- straight people’s marriages are no worse- and there is no wrath from the heavens. In short, there are some mad opponent of this decision, some happy proponents, and some extremely happy individuals who finally feel that the state recognizes them as equal members of society. In a vacuum, it seems worth it. Yet, if the United States Supreme Court gets some new members and decides to strike down something liberals love (say, affirmative action or various social programs that privilege certain economically “disadvantaged” groups over others), don’t cry “judicial overreaching” because you have conceded the courts a far greater power to tell us what equal protection truly means. I am not saying it’s not a legitimate choice, but its one that needs to be done consciously.
The Thomas Jefferson test, which he used regarding religious views and the First Amendment’s relation to them, was: does it pick my pocket or break my leg? He surmized, “It does me no injury if my neighbor proclaims there is no God or Twenty,” basis for this being, “the just powers of government are only to the extent of limiting those activities which are injurious to others” (which may be a paraphrase, going by memory here).
To that end, what really WOULD be the end of the world scenario if polygamy were legalized? If all involved are consenting adults, what’s it to anyone else what they do?
Neopagans, Objectivists, and Libertarians essentially adopt the Thomas Jefferson litmus test to activity, and say that if no one is HARMED by an activity, there is no compelling reason for a society to try to interfere with it. I agree with the essence of that test.
Drugs, prostitution, and gay marriage, are all very spooky concepts to religious authoritarians, invoking fears of the fate of Sodom and Gomorrah, but can we allow irrational fears to govern the course we plot for the 21st century?
I completely agree Ciggy. As I wrote in my feb. 14th article here (http://www.watchblog.com/thirdparty/archives/2004/02/index.html scroll down about half way), both conservatives and liberals seem to have abandoned this principle. The examples I gave in that article were the drug war and social security, but the ones you mentioned are also apt.
There is an interesting passage in justice Scalia’s dissent in Lawrence v. Texas when he says that the rationale of the decision would undermine not only anti-gay marriage laws, but also prostetution laws, drug laws and maximum hour (or minimum wage) laws (!!!). I think Scalia hit the key point there (although i would reach the exact opposite result from his), and the problem is that liberals dont see the contradiction between their support of personal freedoms and their opposition of economic freedoms, while the problem with conservatives is the flip-side of this.
Posted by: Misha Tseytlin at May 17, 2004 11:29 AMGreat article, Misha. I would take issue with the argument that the Ma. Constitution, if it is interpreted to allow gay marriage, would “of necessity” allow polygamy. Not true. The Constitution allows for equal rights but, the states marriage laws specifically prohibit polygamy. To permit gay marriage in no way infringes upon the states ability or right to prohibit polygamy. There is no constituency sufficient enough in Ma. to make the convincing argument that the ban on polygamy is an infringement of their rights under the Constitution. Afterall, the laws are designed to protect and enhance the quality of life for the state’s citizenry. Polygamy has so many downsides and monetary costs to the state that it would be almost impossible to argue for its net benefits to society at large or even a large minority.
Misha, your pedantic argument that equal protection as a concept is defined by one interpretation and implementation of its use, simply does not pass muster. The laws of our land are full of arbitrary, and even contradictory rulings if one looks at them individually and by comparison. Even the Constitution of the U.S. has its own contradictions depending on one’s values. If consistency and uniform applicability and effect upon the citizenry were the standards for law making, there would be no laws.
Think about it. The act of making a law is going to infringe upon someone’s freedom of choice and liberty of action, else there would be no reason to make a law. So, the fallacy that laws are somehow sacrosanctly predicated upon some notion of equal applicablility, restriction, and opportunity for all, is simply not a valid defense for increasing opportunity and pursuit of happiness which also denies no one of any freedoms already enjoyed.
misha-
while i agree with you that gay marrige should not be illeagle and that the best thing would be to make marrige a religous institution, and give everyone the oppertunity to get a cival union, I had trouble with this statement:
“In both cases, the law is purposefully not treating people equally, making those of a higher income pay geometrically more for no better reason than they make more”
in my mind that is equal protection, the more you have, the more you pay. That way the speeding ticket hurts everyone the same.
Misha, it used to confuse me when I was a Libertarian, as to why the two mainstream parties were so incoherent and inconsistent. But now I think that rather than naturally or spontaneously form along the lines of pro-liberty or anti-liberty, this artificial split of oppressive elements and distribution of oppression into two binary parties, has been more a result of design than accident.
I think that certain elements in America maintain their power by way of restriction, socially or economically, it matters little which way they restrict. Any restriction at all allows them to administer it, to wield power over others, and to use that power to further their power in somewhat of a vicious cycle.
Typically a fascist regime will have one official “loyal” party, and then all other parties are banned and those not a member of the one fascist party are rounded up, imprisoned, and so forth. What America has discovered is that the fascism can be more stealthy, and operate with less offense to evolved or enlightened sensibilities, if there is at least the APPEARANCE of “opposition” or political options for dissidents. This way the college professors won’t have to choke back quite as many smirks as they describe this as a “free” country. Now, naturally, they can’t divide the official party into “pro-freedom” and “anti-freedom” factions. Americans being Americans, we would just select the pro-freedom and then the powerful would lose their power overnight. It has to be sneakier than that. The aspects of power and control are distributed evenly to each of two parties: one party emphasizing social and religious control, and the other party emphasizing economic control. As the two parties cycle in and out of various administrations, the liberating aspect of each party is advertised and proclaimed during campaigns, and then once in office each carries out their restricting function, aggrandizing the power of select individuals over others in America.
This may sound like an incredibly cynical viewpoint of American politics, and possibly even a conspiracy theory, but on listening to both right-wing and left-wing rhetoric in the war in Iraq and on “terror” and whatever else is the threat of the day, I am more and more convinced of it.
The added bonus to the ruling elite of having two parties that are internally inconsistent and giant edifices to fallacy, is that each of the fervent members of each have to suspend logic and reason in order to align themselves to each of the party programs. Whatever hot-button “liberty” issue they may have, they have to accept “restriction” issues along with them in order to fit under the party “tent”. Want lower taxes? Do you want them badly enough that you allow the government to micromanage a womb or tell people when they can or cannot marry? No? Then if the social liberty is more important, you must give up the increased tax revenue.
When people are continually running around in circles trying to decide which candidate or which party is the least hostile to their life, liberty, and pursuit of happiness, they don’t have the time or energy to step back and wonder if it’s all a scam.
I think it’s all a scam.
This is one of my favorite pieces of urban legend in the western world, and while I think this is made up, the fact that many CAN believe it to be real, is a scary enough statement about modern society:
http://www.universalway.org/Foreign/silentweapons.html
The commentary between the lines is priceless.
martiniwitz-
“in my mind that is equal protection, the more you have, the more you pay. That way the speeding ticket hurts everyone the same.”
Therein lies the problem- if we are both fellow, equal citizens, we can argue about this and then go to the voting booth. You would win on the income tax issue, I would win on the speeding ticket issue (just based on what people tend to think today).
The problem is that if a group of judges in a state decides I am right about this and believes this IS a violation of equal protection, you are out of luck, no matter how many people you have on your side. Sometimes its needed, but I hope you see the problem I was getting at.
Posted by: Misha Tseytlin at May 17, 2004 07:05 PMMisha,
While my hopes of clerking for you someday have been dashed now, by my inability to follow your argument on equal protection, I’m happy just knowing you would support a Gay Marriage ballot iniative.
I think my new posting on the very subject compliments yours, as I counter your legal examination with pure politics.
This is an important issue that I hope Watchblog can counter the hysteria and divisive fallout, with respectful discourse.
Posted by: Bert M. Caradine at May 18, 2004 01:24 AMmisha, great article.
in usatoday, an article was written arguing against gay marriage, stating that the new mass. court ruling now put into law a ruling that denied children a right to a mom and a dad…..
this horrifies me……
there are PLENTY of hetero families that are broken, mismatched, living with grandparents, or in foster homes…..etc….
and there are gay parents, who have the same struggles raising kids that hetero families do.
to claim that children everywhere are going to be denied a mom and dad because 11% of the population can now get married in one state out of fifty…well…it’s just infuriating.
especially when most of the abuse cases found in families come from hetero families where the parents are married.
apparently, it doesn’t matter to the right if you are a good person or not, or if you are going to be a good parent or not, and raise your children with care, love, an understanding of truth and respect for others, and happiness and support…
just don’t be gay for god sake!
my wife and i don’t have children yet, however, some of our gay friends do have children…and i hope to be as good a parent someday as they are now.
Posted by: rob at May 18, 2004 02:24 AMMisha—
First and foremost, Article 1 of the Massachusetts Constitution was annulled and replaced with Article CVI which states the following:
All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.
It is this Article the MA Supreme Court based it reason upon.
Second, there is no law on the MA books that specifically states that two people of the same sex cannot get married, there is one outlawing Polygamy, to wit:
A marriage contracted while either party thereto has a former wife or husband living, except as provided in section six and in chapter two hundred and eight, shall be void. General Laws of Massachusetts, Title III, Ch. 207, § 4 Polygamy
Third—and I have posed this question to you before—if not the Courts, then what body would you elect to be the final arbiters of the law, of the constitutionality of state and federal laws, and what body would you elect to credibly interrupt state and federal Constitutions? What governmental body if not the co-equal judiciary branch would be better suited to define what “equal protection under law” means then that body populated by those trained in the many nuances of American jurisprudence?
I believe your equal protection argument fails on it face; to me it made little sense and had little bearing on the current debate. In a free society citizens are free to pursue happiness as long as that pursuit does not infringe upon or harm the freedoms of others or of society on a whole. If the state can show no substantial harm is allowing same sex marriage, it cannot legally disallow it, without running afoul of the equal protection doctrines enshrined in both MA state and the federal constitution. In other words, the state cannot arbitrarily discriminate against a group of citizens without a compelling reason for doing so. And state cannot arbitrarily legislate law outside the principles of constitutional doctrine.
In her majority opinion in the now celebrated case striking down MA prohibition against Gay marriage, MA Supreme Judicial Court Chief Justice Margaret Marshall wrote.
The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples…
She went on to state:
Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law…
Marriage in the many states is a secular institution, created by the many states as a civil contract, between two people. Based on that understanding, the state cannot deny equal protection under law to same sex couples, to marry, again, absent a compelling reason to do so.
Again, I refer to the MA decision:
We have recognized the long-standing statutory understanding, derived from the common law, that “marriage” means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question…
The Supreme Judicial Court went on to say that marriage, in itself, is created by governments and is a “secular institution,” and that “…[n]o religious ceremony has ever been required to validate a Massachusetts marriage.”
What reasoning can be brought forth outside religious arguments that having no bearing here, to support the continued denial of same-sex couples the right to marry? Equal protection under law is just that, equal protection. It is not some nebulous concept to be ignored when it suits us, but a binding doctrine enshrined in the very foundation of American jurisprudence.
Edward martin, I once shared your rather naive view of the function of courts in interpreting phrases like “equal protection” and “due process”, from studying law I have come to realize that judges are not so nuetral and detached as you seem to think they are. There are 7 judges on the Massachusetts Supreme Court, 4 of them agree with me (and you) on the meaning meaning of equal protection in this context, three disagree. So basically its the judgement of 4 judges to 3 about what the meaning of equal protection is that has decided this issue. Decided it for the entry state- override the democratic process.
Interesting, if the same case came before the United States Supreme Court (judges, mind you, that presumably have greater training “nuances of American jurisprudence”, the equal protection inquiry would come out the other way). Better yet, a decision I am sure you wont like one bit- Bush v. Gore, is a perfect example of how pliable seemingly clear constitutional concepts are to judges (on BOTH sides in that case) to judges who want to reach a particular result.
I am not saying that judges shouldnt do this, i plainly said that sometimes they need to. What I am pointing out here is that saying the judges are just “saying what equal protection means” smooths over a very difficult question. Again, I point you to the progression taxation example, which I believe violates equal protection while you do not (i presume). I am sure many judges agree with me, and many agree with you. Should it be a headcount of judges that decides this issue, or voting by citizens? this is not a rhetorical quesiton, but a difficult one which I have no real answer to.
To answer your question, as I answered it before, the judges are sometimes suited to answer these questions- but not always. The best times are ones where factors like (1) the court is speaking unanimously; (2) there has been some failure in the democratic process (for example, if the democracy has disenfrachised a minority so they cannot vote) ect; (3) the society is ready for the change the court is impossing.
I am not actually disagreeing with you as much as you think here, just pointing out that this is much more difficult issue than many on the left realize. Consider the following quoation by Abraham Lincoln:
“I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the objects of that suit, while they are also entitled a very high respect and consideration all parallel cases by all other departments of the government… At the same time, the candid citizen must congress that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the PEOPLE WILL HAVE CEASED TO BE THEIR OWN RULERS, having to that extent practically resigned the government into the hands of that eminent tribunal.”
There is a lot here to think about, its not as black and white as it may seem just because the judges got it right this time around…
Posted by: Misha Tseytlin at May 18, 2004 01:13 PMjust so you know, the above quotation by Lincoln was talking about Dred Scott, in which the Supreme Court decided that blacks could never be citizens of the United States… its important to consider that Courts are capable of making decisions like that before handing over the keys to the constitutional car…
Posted by: Misha Tseytlin at May 18, 2004 01:32 PMone more example:
Just yesturday the same Supreme Court that recently said that Title I of the Americans with Disabilities Act (prohibiting discrimination in employment) was unconstitution as applied against the states decided that Title II of the SAME ACT (requiring reasonable accomindations) WAS constitutional as applies against the states! Basically, because Justice O’Connor changed her mind (flipping the 5-4 majority).
I studied this case in detail when it was coming to the supreme court and there is absolutely no plausible way these decisions can be squared. None. And its the same justices! But there you have it- the constitution means what it means because justice O’Connor woke up on the wrong side of the bed this morning. These are the people training in the training “nuances of American jurisprudence”.
Posted by: Misha Tseytlin at May 18, 2004 01:41 PMMisha—
The Founders, like I, share the opinion that judges do not live in a vacuum and to assume as much would be absurd, which is why there are not an equal number of justices sitting on any appellant court. Justices are people too and do hold Party affiliations, and are swayed by their religious and other beliefs, that is life and I accept is as fact.
American law is, as you should know having studied it, is based on both precedent, and Black Letter Law; i.e. statues and ordinances. Both can, and have been overturned, and new law made by the third co-equal branch of government whenever either have offended the principles of the Constitution.
You state that the Courts should “sometimes” interrupt the law and insinuate that the citizens should be left to vote on the rest, to wit:
Again, I point you to the progression taxation example, which I believe violates equal protection while you do not (i presume). I am sure many judges agree with me, and many agree with you. Should it be a headcount of judges that decides this issue, or voting by citizens? this is not a rhetorical quesiton, but a difficult one which I have no real answer to
Well I have an answer: NO! If citizens were free to vote on the laws they thought were constitutional, the majority would always win, thereby shutting out the minority, in effect neutralizing the constitution. This is not how the Founders envisioned it. To be clear the United States is not a democracy, we are a representative democracy; the distinction between the two is very important. If you have studied the law then you know that America law is very complicated, even to those who practice at the bar; I could not even imagine trying to get the average citizen to understand the underpinning of the due process, strict security as it applies to civil rights, or the intricacies of common law vs. Uniform Commercial Code contract law! I’ll wager the average citizen couldn’t tell you how the houses of Congress function, or the difference between Fundamental rights and Civil Rights, let alone how the committee system for passing a bill works. And you would trust them with interpreting the law; no thanks! There is a reason lawyers have to go to law school for three years (four years if you are a night student like myself) Misha.
The Judicial branch—like it or not—is a co-equal branch of our government charged with interpreting the laws passed by the legislative branch. The Courts have the keys to the “Constitutional car,” and Dred Scott, Plessey vs. Ferguson not withstanding, there are no other hands I would entrust them in.
In making my statements I am ever mindful of the long and disgraceful period of American Apartheid under which the minority was subjected to tyranny and injustice at the hands of the majority. Under your system of justice, in Brown vs. Board if the Justices had decided the case 5-4, the decision would then have been thrown to the people to vote on. Would you like to take a guess on what the outcome of the vote would have been? After all no one could creditably argue that society as a whole (read majority) was ready to set aside Jim Crow laws. I don’t have to guess the outcome of that cote, I know…
As far as the Supreme Court’s decision on the ADA, the Court deliberately narrowed its focus to the case(s) at bar, speak just to Title II and no other section, leaving open, for good or ill, the other provisions of the Act. As you study constitutional law you will come to find that this is something the Supreme Court does as a matter of course, not exception. Another thing you will learn, and hopefully come to appreciate, is that every case before the bar is different and has to be treated as such; no two cases are the same.
Edward:
1. the court struck down title I of the ADA just a couple of years ago- now it upholds title II of the ADA with no decernable difference other than justice o’connor changed her mind. how can you possibly defend that?
2. Brown v. Board WAS effective, if it even was (it is questionable whether it changed anything- see Brown II, where the Court confronted the fact that its decision had not actually done anything to desegrate the school) because it was unanimous. if the court had decided 5-4, it is likely the decision wouldnt have had any actual effect- people would have just ignored it. what really fixed the segregation problem was the Civil Rights Act of 1964- and you can say that this was a result of Brown v. board- but then its a chicken or the egg argument. The way that great social change happens is because people’s opinions change- a 4-3 decision by a court will hardly change anyone’s opinion. What the court did in Brown v. Board is exactly what I think court should do- it calculated that if it issued a 9-0 decision, it could change some minds and start the country back on the path of equal protection in the area of EDUCATION. it did not say “presto, the whoel south must now change all of its institutions” because that wouldnt have been effective. It first said schools, then the next step, then the next…. thats the only way it would have worked.
3. “The Founders, like I, share the opinion that judges do not live in a vacuum and to assume as much would be absurd, which is why there are not an equal number of justices sitting on any appellant court.” - please tell me the provision in the constitution that says there must always be an odd number of justices sitting on the supreme court.
4. The key problem with your judicial supremacy view is that it does NOT treat the Court has a co-equal branch of the government, it treats it as the dominant branch. ALL of the branches are sworn to protect the constitution, not just the judiciary. If the president has one view of what the constitution means and the court has another, and they are both co-equal, based on what principle does the Court’s view ALWAYS win. The only principle would be that the Court is the dominant body in government, and if it can make any argument, accepted by the majority of that same court, that its view is “constitutional”, then the court always gets its way.
The founders understood that ambition must counteract ambition, and you cant concentrate full power in the hands of the judiciary, just as you cant concentrate it in the hands of the president or Congress.
Congressmen are also sworn to uphold the constitution, as is the president. They are not sworn to uphold the constitution as justice O’Connor sees it today, but as the actual document. My view of courts in constitutional interpretation is as a cautious cuing function, letting the other branches known when the court thinks they are out of line. The court must interpret the constitution if it is retain its place within our system, but it must do so cautiously and carefully, lest it make the pretentions that it is not a co-equal branch, but the dominant branch, which gets to make all the big decisions in our country which would then cease to be a government of the people by the people. Remember, even the constitution is justified only because of popular vote (that is, it was adopted by the people), and thus the people, not the judges, are the ultimate soveriegns in our country.
Posted by: Misha Tseytlin at May 18, 2004 03:46 PM“Well I have an answer: NO! If citizens were free to vote on the laws they thought were constitutional, the majority would always win, thereby shutting out the minority, in effect neutralizing the constitution.”
ok, lets say i grant that when it is a TRUELY constitutional violation the people should not be able to have a majority vote to override it. I think most everyone agrees with that. Now here is the million dollar question: How do we decide IF something IS a constitutional violation or something the democracy should be able to decide?? if the court can decide WHEN something has a constitutional implication and then ALSO be the final arbiter of whether that action violates the constitution, then the court has absolute power.
Its like if we set up a system where everyone on watchblog got to vote on everything that wasnt “constitutional”, but then David got to decide what was “constitutional” and then get to also decide the issue. In that case David would be the dictator on watchblog because any time he wanted to decide an issue, he could just call it constitutional. Thats basically what hte supreme court has done in cases like Roe, City of Boerne v. Floeres ect.
Posted by: Misha Tseytlin at May 18, 2004 03:54 PMThe purpose of judicial appraisal of constitutionality is not to “legislate from the bench” or to even be politically activist themselves, but to basically level-set the degree to which popular force must be applied to bring something to law, and the avenue by which that force is required. If they rule something “unconstitutional”, it’s a de facto challenge to the people to make their will climb the higher hurdle of a constitutional amendment. This was done, for example, with slavery. Popular will was overwhelming enough toward prohibiting slavery that when the judicial system set the bar at constitutional amendment, that popular political will jumped it and cleared it. When they deem that a law is not unconstitutional, they are simply saying that the will of the people as measured by the lower standard can be applied in law.
The underlying theory of the founding fathers behind all this is that it will be more difficult to get 3/4 of all people, as represented by their state delegates to a constitutional convention, to uphold, say, an abolition of free speech. It’s a tough sell even if simple majority were required to pass it in the house, but an even tougher climb up to the 3/4 mark. And as such, John Ashcroft will always be butting his head up against the constitution when he tries to micromanage broadcasting companies to certain arbitrary standards, for good or ill.
When it comes to gay marriage, it was a state constitution being appraised, not the federal one, and the language of the state constitution there is more clear in sustaining the prohibition on state government from meddling in who can and who cannot get married.
Marital meddling is a hallmark of medieval Europe, by the way. It was a power and privilege of a feudal lord to be the approving authority on marriages by his vassals and subjects, partly because marital decisions among the gentry and aristocracy could have international political implications at that time. A continuation of that ATTITUDE of approving or disapproving marriage in certain circumstances was something American colonists tried to purge from their minds, but weren’t able to completely purge in all instances. Biblical fervor motivated keeping some aspects of marital micromanagement in place, and to some extent the human tendancy to want to lord it over others just plain blurts out like a freudian slip.
Whether it’s baby steps or an airborn shuffle, though, American law creeps onward toward a more liberated society, in spite of rabbit punches from the fundamentalist religious crowd, or their unlikely political bedfellows in the “politically correct” crowd.
Misha said:
“How do we decide IF something IS a constitutional violation or something the democracy should be able to decide?? if the court can decide WHEN something has a constitutional implication and then ALSO be the final arbiter of whether that action violates the constitution, then the court has absolute power.”
… that is the strangest argument I have ever heard. The ones who arbitrate whether or not actions violate constitution should not get to decide when something has constitutional implications? By that logic, slavery would not have been arbitrated as a constitutional matter, because outside of the court the majority would have declared that the constitution did not apply to slaves because they were not men and so did not have constitutionally-granted rights. The only way to have the power to arbitrate whether or not something violates the constitution is to be able to decide whether or not it has constitutional implications. The two issues are not separate, they are one and the same… to remove either aspect from the power of the court would to be tantamount to removing all of their power.
Also, the idea that this makes the branches of government unequal is absurd. They are equal in scope and authority, not equal in function. It is the JOB of the court to be the final arbiter of the constitutionality of something, not the job of the president. Would you also declare that the president’s power as commander in chief of the military makes him more powerful than the courts unless they were given authority to direct the army as well? These are different inherent functions, and are not signs of inequality.
Posted by: Jarin at May 18, 2004 08:00 PMAlso, every serviceman in the military is sworn to defend and uphold the constitution of the united states. Are you actually suggesting that each of them should also be coequal in the interpretation of the document based on that oath?
Posted by: Jarin at May 18, 2004 08:12 PMIts not that strange an argument Jarin. I direct you to any of Abraham Lincoln’s speaches on the issue of Supreme Court power or Mark Tushnet’s Taking the Constitution Away From the Courts for a fuller account of the position (which I do not fully accept).
as for this odd comment: “By that logic, slavery would not have been arbitrated as a constitutional matter, because outside of the court the majority would have declared that the constitution did not apply to slaves because they were not men and so did not have constitutionally-granted rights. “
You do realize that the court did not strike down slavery at all- and in fact, using the power that you want to give it exclusively to make slavery even more potent in Dred Scott.
Listen, I am NOT saying the Supreme Court should not have judicial review, I am saying this is a very difficult topic that you guys are missing the contures of. Again, every branch takes a pledge to uphold the constitution, not just the court. When the president swears to uphold the constitution, he does not swear to uphold what justice o’connor thinks about it on any given day. that would be judicial supremacy.
Judicial review is not in the constitution- it developed because it was a useful function for the judiciary to serve. The court can only serve this function if it does so very carefully, or it will lose the power completely. Anyway, I urge you to take a look at that book I cited, as it lays out the position I am talking about (although i do not fully accept). If you really think about it, i think you can see what you are missing in this debate.
Posted by: Misha Tseytlin at May 18, 2004 08:17 PMagain, point me to where it says in the constitution that the Court has more authority to have the final say on what he constitution means than the president. The court decides cases between individuals that come before it- that is its pervue. I will repeate the Lincoln quote and I urge you to read it over:
“the candid citizen must congress that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the PEOPLE WILL HAVE CEASED TO BE THEIR OWN RULERS, having to that extent practically resigned the government into the hands of that eminent tribunal.”
Yes, I do realize that they made it worse with Dredd Scott. However, that in and of itself shows that the system works: this is an example of a great abuse that was DEALT WITH by the legislature through the method of revising the constitution. That being the power that makes the branches coequal. The court can interpret, but the legislature has the power to revise.
Turn your argument around for a moment and look at it from another angle: if we took the position of interpreting the constitution away from the judicial branch, but left the position of revising the constitution in the hands of the legislature, wouldn’t that make them the supreme authority that you are so afraid of?
Yes, i agree with what you just said Jarin, which is why I do not agree with the position of Lincoln or that book i was citing. I envision the court as using its power of judicial review very very carefully, and only when absolutely needed. There are no bright line rules about this, just a very careful balancing test. I think when the court says something another branch did is unconstitutional it better be REAL sure and it better be very cautious about it.
By the way, the legislature did not respond to Dredd Scott, the response came after a bloody 5 year long civil war.
Posted by: Misha Tseytlin at May 18, 2004 08:42 PMmisha:
According to the information I have available, the Dredd Scott decision was overturned by constitutional amendment, one of only four decisions ever overturned in this manner. Regardless of what actions preceded that response by the legislature, that is the action that overturned it as far as the actual laws of the united states are concerned.
And, respectfully, it seems that you are arguing for the repeal of judicial review if you are saying they should not have the power to both review and decide when such a review is necessary.
Posted by: Jarin at May 18, 2004 09:04 PMMisha—
You Stated:
ALL of the branches are sworn to protect the constitution, not just the judiciary. If the president has one view of what the constitution means and the court has another, and they are both co-equal, based on what principle does the Court’s view ALWAYS win.
Your answers to my comment thus far demonstrate a basic lack of understanding vis-à-vis the proper relation of our three co-equal branches of government. The Constitution makes that relation quite clear, to wit:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.US Const, art I, § I.
The executive Power shall be vested in a President of the United States of America… US Const, art II, § I, cl I.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… US Const, art III, § I.
Just as the Congress has no power to enforce law, the President has not the power to create law; just as the Supreme Court and inferior courts cannot make Black Letter Law, the Congress cannot adjudicate law and just as the Supreme Court cannot call out the National Guard of the many states, the President cannot insinuate himself into on matters judicial in nature. It’s called checks and balances.
As Jarin pointed out, each member of the U.S. Armed Forces is sworn to uphold and protect the Constitution of the United States; should each member be called upon at certain time in their career to interpret the document? Does that make any sense? And yes, the Courts view of what the Constitution means trumps that of the President’s, and the Congress, because that is the Judiciary’s narrow focus under our system of governance. In matters of constitution scholarship, and interpretation the court ALWAYS wins, as it should.
Title 42 U.S.C., the Americans with Disabilities Act is broken down into several subtitles, each subject to judicial review. Subtitle I which the Supreme Court struck down as not applying to the many states deals with Employment, while Subtitle II, which deals with access to public services, was upheld. I do not see the problem of conflict here. As I pointed out earlier the Supreme Court will often only deal with one provision of a Title, dealing specifically with the case at bar and leave the other provision intact. It did this in early 2000 when it struck down portions of the Violence Against Women Act, as unconstitutional ruling that Congress had overstepped it legislative bounds, but left portions of the Act intact.
Speaking of Brown v. Board. Again your understanding of the significance of this case is lacking. Brown v. Topeka Board of Education et.al was about more then desegregating the public schools; it was primarily about reversing Plessey vs. Ferguson and ending desegregation in American society as a whole. It, not the Civil Rights Act of 1964, started the Civil Rights movement which began to sweep away the lingering latticework of cancerous Jim Crow laws in the South, and the covert Institutionalized racism and decimation of the North. Brown v. Board elevated black Americans from second class citizenship to a station on par with white Americans, and hollered in unambiguous tones that the U.S. Constitution and Declaration of Independence belonged to all Americans not just the majority. The Civil Rights Act of 1964 was the outcome of that beginning. No chicken and egg scenario here. And segregation is still not completely “fixed” in America, nor is racism, dead, nor discrimination dormant.
I will concede the point that the Constitution does not address the specific make up of the Courts; that was left to Congress. The Judiciary Act of 1789 fixed the Supreme Court at 6, five Associate Justices and one Chief Justice. That number was increase to eight Associate Justices and one Chief Justice with the enactment of 28 U.S.C. § 1. Judiciary and Judicial Procedures in June 1948.
Posted by: V. Edward Martin at May 19, 2004 10:16 AMEdward-
1. your analysis of the ADA does not say WHY Title I is unconstitutional while Title II is constitution. I understand they are different, but they are NOT different from the point of view of the constitution. It is just Justice O’Connor playing power games and I am pretty sure all 8 other members of the Supreme Court know this. This example shows that the naive view that the Court is just saying what the constitution means is a untrue as an imperical matter. Just so you know- there were TWO different cases. Garrett, a couple of years ago, striking down Title I. and now just a couple of days ago, the Court upheld Title II. Anyone familiar with Garrett would be shocked and amazed at this.
2. Your view of the function of hte judiciary is not only ahistorical but also fundamentally flawed as a matter of understanding of the role of courts in a government that makes laws at the behest of the people. Courts settle disputes among parties within a suit, they do not make policy- and they should not. Sometimes a court must address an issue of constitutional importance when dealing with a dispute before it. Deciding what the constitution means is just subset of that and only to be performed while doing that function (otherwise the Supreme Court would be able to offer advisory opinions on matters of constitutional importance, which the founders expressly rejected in the convention - have you read my thesis yet :)?).
When the Supreme Court goes beyond this and starts making policy in the name of constitutional intepretation (see Miranda), it has overstepped its bounds within our constitutional system.
As I am sure you know, the constitution is the supreme law of the land- if the judiciary has sole power to say what the supreme law of the land is at all times, it would mean that the justices of the supreme court have control over that supreme law. This is NOT what our founders intended. They intended the judiciary to check the other branches when they got out of hand- in a system close to what I am proposing. Your picture is one of total judiciary supremacy over our constitutional system, which is antithetical to the foundations of our nation (the judiciary was supposed to be the least powerful branch- see Hamilton in the federalist papers)
Posted by: Misha Tseytlin at May 19, 2004 12:32 PMAlso, I want you to point me to where in the constitution it says that the court’s view of the constitution must ALWAYS trump that of Congress and the president. The only thing I can find is that the court has jurisdiction of all cases “arising under the constitution”- i hardly think that this phrase justifies your conclusion. as a result, since judicial supremacy over constitutional interpration is not constitutionally required, it is only a matter of prudence that we allow the judiciary to check the abuses of the other branches in particular cases. As a matter of mere prudence and not constitutional mandate, this means this power must be used very carefully, lest it not be prudent anymore for the court to retain it.
As far as I can tell, you want the court to always invalidate anything that the other branches do that it thinks is plausibly unconstitutional. No Supreme Court has ever taken that position- and in fact, they have developed smart doctrines like the Political Question Doctrine and other rules of deferrence to co-equal branches so that the court only invalidates laws that are not close to being constitutional. At least thats the idea. The problem comes when the supreme court mouths these doctrines of deferrence and then just makes decisions based on its political or institutional goals. See Roe, Miranda, City of Beorne v. Flores.
Now note this carefully: ALL i am proposing is that the supreme court start taking these doctrines of deference more seriously, so as to give judicial review the more limited scope and thus more respectability when it is used, that it was intended by our founders. If you agree with this, we are in agreement. If not, well then your position is confusing to me.
Posted by: Misha Tseytlin at May 19, 2004 12:43 PMMisha—
I feel no need to discuss the cases in-depth, but feel free…
Congress derives its legislative power from the constitution. Any law, and by extension, any regulation must finds its roots in the constitution. Congress when writing a law cites the section of the Constitution from where it derives the power to legislate in that area; to wit when establishing its power to legislate the ADA, Congress wrote the following:
…to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day ¬to¬day by people with disabilities… 42 U.S.C. § 12101
When performing judicial review of a statue the relevant portions of the constitution taken together with Congressional findings are then juxtapositioned against the wording of the statue to determine constitutionality. So, yes, the ADA is one statue, but it is broken up into different sections and each section must meet a constitutional test. Once again the case of the ADA Title I deals with employment, and Title II with Public Access; each section must pass constitutional muster. Again, every case brought before the bar is different; if only the practice and application of American law were so simple.
My view of the role of the Court(s) is historically accurate for it is informed by formal schooling in the area of American jurisprudence, and practical application of the law, is yours?
Like it or not, it is the Courts in our system of governance that is the final arbiter of Constitutional doctrine, and I for one would have no other way.
