Constitutional Flame Bait
Posted by
tgirsch
If the originalists are indeed correct, since the Constitution doesn’t explicitly protect personal autonomy from government intrusion, it therefore doesn’t afford any protection thereof. If that’s true, then the states can violate your personal autonomy however the hell they want, and you have no federal recourse. And if that’s true, then I’d argue that the Constitution is a piece of shit, not worth the parchment it was lettered onto.
Discuss.
John Roberts and Samuel Alito both said in their confirmation hearings that there is a right to privacy in the Constitution.
What they meant (but didn’t say) is that Dick Cheney has the right to keep his meetings with oil-company executives secret.
Comment 1/20/2006
Heck, the Constitution doesn’t mention an individual’s right to vote or an individual’s right to not be owned by someone else. It was a great effort for the first document of its kind, but I think most would agree it has several fairly serious shortcomings in terms of what it does not address.
What seems obvious to the casual observer occasionally gets lost on those that live and breathe the subject matter. I’d say originalists tend to suffer from that shortcoming.
Comment 1/20/2006
If you don’t like the Constitution, convince your senators and the states to admend it.
Comment 1/20/2006
Thanks for the civics lesson.
Comment 1/20/2006
Hey, I like the Constitution just fine. I just don’t generally like the Originalist interpretation of it.
Among other things, under originalism, Brown vs. Board of Education is an incorrect ruling; there was not “original intent” for the fourteenth amendment to end segregation, because it never would have passed at the time if that were the stated intent. In order to come to the conclusion that Brown was correct, you have to take a more nuanced view, ignoring the “intent” of the fourteenth (whatever that may have been) and instead looking at what the 14th says, and thinking through the implications of what it says. But maybe that’s just me.
Comment 1/20/2006
I think there are two major errors implicit in this criticism.
1) The Constitution does not, primarily, list the things people are protected from the government doing. The Constitution primarily lists the things that the federal government is allowed to do, and people are protected from everything it’s not allowed to do. In efforts to let the federal government do things that aren’t within it’s powers, “living document” interpreters have reversed that and now the federal government is apparently allowed to do anything that isn’t forbidden. It is true that it has little meaning under this approach.
2) Rights of individuals under the states were always intended to be protected by state constitutions, however these are interpreted away just as casually as under the federal.
Also, I have a question; what actually is ‘personal autonomy’? It’s not a phrase with a lot of history. Does it include my right to speak, or defend myself, or use my income as I see fit, or liberty (the right to do as I will until someone else is hurt)?
Comment 1/20/2006
EG, not withstanding the Bill of Rights…
Comment 1/20/2006
Ted, there was a lot of discussion about whether to include a Bill of Rights. The reason those who argued against it gave was that it might be misinterpreted as implying the federal government might those have powers not forbidden by the Bill of Rights, which is the reason for Amendments 9 & 10:
Also the introduction to the BoR:
Comment 1/20/2006
I forgot, this was flame bait. TGirsch, your lack of appreciation of the liberty implied by an originalist interpretation of the Constitution as a whole, especially Article 2 Section 8, in which Congress’s strictly limited powers are enumerated, makes you a big stupidhead.
Comment 1/20/2006
Sorry for the super convoluted mistyped sentence. To rephrase:
The reason some argued against the Bill of Rights, was that if it were included, some might misinterpret the Constitution as granting those powers to the government not forbidden to it by the BoR, thus the stuff I quoted.
Comment 1/20/2006
EG,
Perhaps. Or perhaps this argument was specious and those opposing the BoR did so for first order reasons - they were in favor of a more centralized government than those who insisted on the BoR. This was, after all, the crux of the debate that protracted the framing convention.
That said, I am no expert in this area and I sense your knowledge and understanding of these issues far surpasses mine. I find that I learn a lot from your comments.
Comment 1/20/2006
Ted, thanks!
A good example of opposition to the BoR was Alexander Hamilton’s:
Comment 1/20/2006
But that is consistent with originalism. Judicial liberalism is more like magically “finding” a 14th Amendment before it was ratified, not applying it more consistently than its framers may or may not have intended (though my guess is that the framers DID intend to to apply as broadly as it does today, provided it didn’t apply at all outside the South).
Oops, I forgot, this was meant to be flame bait, so forget what I said, and instead go pound sand up your nether regions, you stupid, annoying, retarded, malodorous, Belgian, ill-mannered, toffee-nosed pervert.
Comment 1/20/2006
Oh yeah, and speaking of flames, do you even know what “Vanilla-Mist” means in German?
Comment 1/20/2006
[…] No, seriously, they really do. Here’s the proof. […]
Pingback 1/20/2006
Xrlq:
No it’s not, at least not as I normally see originalism presented. According the originalism I always hear about, the 14th amendment means whatever the people who drafted and ratified it believed it means, and nothing more. I suppose it’s possible that you’re conflating originalism with strict contstructionism, two often-related but distinctly separate things.
Not really. At least, not all judicial liberalism (certainly not mine). I generally find myself more concerned with what the document says rather than trying to divine what a bunch of what guys may have been thinking a century or two ago.
Has “judicial liberalism” come up with some tortured damn definitions? Certainly. But you needn’t read much Scalia to see that so has judicial conservatism.
Huh? I’m not even sure of what it means in English, unless you’re talking about putting extract in a spray bottle or something…
EC:
I’d argue that these are swept away far more casually at the state and local level than at the federal level. But my larger point was that if it’s wholly left to the states, with absolutely no rights whatsoever guaranteed to the people. Remember, if the federal constitution applies only to what the federal government can and cannot do, then that includes (for example) the 2nd amendment, meaning that any state could, if it wanted to, take .45s away from geeks everywhere, and there’d be nothing at all unconstitutional about that.
I think your summation is essentially correct. It’s basically your right to do what you want to the extent that you don’t harm or abridge the rights of others. So certainly, things like birth control, drinking, drugs, etc., would fall under that penumbra.
I’m not aware of any liberty implied by such an interpretation. In fact, in the originalist interpretation, the constitution solely discusses what the federal government can and cannot do. Which means your “liberty” is protected only insofar as the feds cannot encroach upon your liberties unless specifically prohibited from doing so. Unfortunately, as the short history of our country has shown, it’s generally not the feds you have to worry about when dealing with abridged liberties.
Of course, it’s entirely possible that I’m “misunderestimating” the originalist interpretation.
I think the larger concern was that explicitly listing certain rights would disparage those not listed, hence the 9th amendment.
As to the enumerated powers of government, BoR, etc., that has a long history of being abused and ignored even by those who claimed to support strict construction. Jefferson, for example, didn’t believe the government had the power to buy land for expansion (and, from a strict constructionist view, I think he’s right), but that didn’t stop him from doing it. And, of course, there were the lovely alien and sedition acts.
That’s not to say that these things were right, just that when the rubber hits the road, almost no one turns out to really be that much of a strict constructionist.
I’ve argued in the past that if we truly followed a strict originalist interpretation of the constitution (and/or the South had won the civil war), it would inevitably result in the Balkanization of the US, and the republic wouldn’t survive very long.
So what type of constitutional jurisprudence do I support, then? It’s something I’m still trying to work out, but I’m intrigued by Publius’ “non-originalist textualism.”
Comment 1/21/2006
I’m not sure what “Vanilla-Mist” means in English, either; I just noticed it appears at the bottom of this page. In German, it means “vanilla-flavored poop.”
Comment 1/21/2006
TGirsch said,
“Remember, if the federal constitution applies only to what the federal government can and cannot do, then that includes (for example) the 2nd amendment, meaning that any state could, if it wanted to, take .45s away from geeks everywhere, and there’d be nothing at all unconstitutional about that.”
That was in fact the case as regards the federal constitution before the 14th Amendment, but most state constitutions also contain a right to bear arms, so it would still have been unconstitutional in most states.
http://www.law.ucla.edu/volokh/beararms/statecon.htm
I see two more major points of disagreement here.
1) People’s rights and government powers are opposite. As Hamilton points out, a right is preserved when a government has no power to infringe it. Enumerating all the people’s rights with specificity appropriate to even a general Constitution should be an impossibly huge task, unless you think people should have a whole lot fewer rights than I think. They cannot be too general, or they mean nothing; e.g. “The right to do what you want to the extent that you don’t harm or abridge the rights of others.” I don’t know any law that the proponents wouldn’t argue goes along with this; sodomy harms the character of the community, drug use harms families, etc.
The inability to enumerate all rights specifically makes strict limitation of powers essential.
2) I just don’t really have a problem with the general notion that the federal Constitution controls the federal government and state Constitutions control state governments. There have been times where some states did great evil that the Federal government would not, e.g. the last slave states, but there have likewise been times where some states abstained from great evil the Federal government would not, e.g. the first abolition states.
Comment 1/21/2006
X:
Oh, now I see it. Apparently that’s the site from which Kevin, err, “borrowed” the design.
EC:
Yeah, except that I thought originalists (particularly of the Thomas mold) hated and did not agree with the incorporation doctrine.
As to the points of disagreement, I’d sum it up more succinctly. The ultimate question, I think, is “Are there certain rights which no level of government has the power to infringe?” And under the originalist interpretation, that answer has to be “no,” because the federal constitution exists only as a limitation on federal power. Under a strict reading of the fourteenth, states could still restrict most rights, as long as they do so for everyone.
The thorn, of course, is what constitutes a “privilege” or an “immunity,” because those cannot be infringed by the states. And the originalist interpretation says that “privileges and immunities” means whatever it meant at the time of ratification. But even there, counties and localities could constitutionally do so, as only the states were prohibited from doing so.
Comment 1/21/2006
TGirsch asks,
“The ultimate question, I think, is “Are there certain rights which no level of government has the power to infringe?” And under the originalist interpretation, that answer has to be “no,” because the federal constitution exists only as a limitation on federal power.”
I would say, absolutely there are certain rights which no level of government has the power to infringe, and further there are too many to list specifically, as per my previous point.
While I do see advantages to adding lists of many of them (especially the ones that have become controversial since the original Constitution) to the federal Constitution, I don’t see the lack of them as rendering the Constitution “a piece of shit, not worth the parchment it was lettered onto”; especially since honest orginalist interpretations of federal and state constitutions would render governments powerless to violate them. (I think there have been several dishonest interpretations by those claiming to be originalist).
“But even there, counties and localities could constitutionally do so, as only the states were prohibited from doing so.”
I don’t think that’s the case, because while the states are independent political entities which were always intended to have many powers the feds don’t have, counties and localities are simply subsections of the states that derive their power from it. E.g., the federal government could not decide to make North and South Dakota one state, but North Dakota could decide to combine two of it’s counties. So, localites have no power the state doesn’t have.
Comment 1/21/2006
That’s not true. Compared to the Articles of Confederation, the original Constitution was a huge limitation on the powers of the states. The Bill of Rights was intended to counter that, in part. And a strict constructionist reading of the Fourteenth Amendment would make that restriction apply only to the states.
That would work under the equal protection clause, but not necessarily under the P&I clause, the one part of the Fourteenth Amendment for which an incorporation-like theory is at least defensible (and therefore, NOT the part under which the courts actually adopted the doctrine). Justice Thomas has hinted that he would shift the incorporation doctrine to the P&I clause, which would catch just about everything that has been incorporated except the Establishment Clause - and presumably, would also catch the individual rights the courts have conveniently declined to incorporate (e.g., right to bear arms, grand jury indictment, right to civil jury trial).
Comment 1/21/2006
XLRQ
Sorry, but the actual practioners of OI, like Thomas, are generally on record as stating that the 14th does not mean the Bill of Rights applies to the states.
Comment 1/21/2006
EC:
Excellent. Let’s drill down on this, shall we? Because this is exactly where we need to go. How do we know that they have no such power? And what prevents, say, the states from trying to take such power?
I should note that the question I asked wasn’t quite clear enough. It’s not just about the government not having the power to infringe certain rights, but about prohibiting any government from ever having such power.
As to listing things explicitly, I agree that would be impossible and foolish to attempt. So that puts the question back to how do we “know” which rights are so protected and which aren’t? Is privacy or isn’t it? How do we know (without “making it up” as some OI folks like to accuse)?
That’s the $64,000 question. Since we don’t have an explicit list of those inalienable rights, how do we prevent states from infringing them. And if the Supreme Court doesn’t get to have the final say in the matter, then who better?
Comment 1/21/2006
TGirsch, my basic claim is that as we can’t list everyplace the government can’t go, we should hold it strictly within a list of everyplace it can go. If that list is strict enough that the government can’t step on unenumerated rights, then the problem of their lack of enumeration is moot. The other way to solve this problem is a ‘living constitution’ interpretation enumerating rights that are listed unspecifically at best.
Both approaches suffer problems related to biased interpretation. I submit that the ‘living constitution’ approach is superior in the following ways:
1) It allows far more leeway to the government to do good things.
2) It is much quicker to react when a new way of abusing government power is found; the other requires legislative or Constitutional change.
On the other hand, I submit that the ‘limited powers’ approach is superior in these ways:
1) It better supports rule of law, not of men, as it’s based narrowly on the Constitution. The other is based loosely on the Constitution and narrowly on the decisions of the unelected members of the Supreme Court.
2) It better prevents new abuses; it’s awfully easy to tread on somebody’s rights when you feel you have an unlimited license to do whatever you think is best for the nation, and they think differently.
Comment 1/21/2006
Kevin:
I’d like to see a source for that. The closest I can come up with is Justice Thomas’s dissent in the Newdow case, where he argued that the Establishment Clause - and only the Establishment Clause - “resists incorporation.” He did not argue, as you claim, that any of the individual rights protected by the Bill of Rights resisted incorporation, or that the very concept of incorporation was bunk. In fact, he said the exact opposite, noting that “the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment.”
Comment 1/22/2006
EC:
I think we’re still talking past each other. Here’s the kicker:
That’s all well and good. The problem is, our constitution doesn’t do that. Even in the most strict construction, it does that only at the federal level, leaving the stats free and clear to do pretty much whatever they want, up to and including infringing rights (with a few restrictions added by the 14th amendment — and even there, as long as they infringe equally, they’re probably all right).
Some states have done a better job than others in protecting against this in their state constitutions, but there’s absoltuely no guarantee of this, nor any requirement for them to do so. So what we’re left with is yes, there are certain rights that no government has the authority to infringe, but we don’t have any reliable method of telling what those are.
As to your two approaches, again, I advocate Publius’ third way, which rejects both originalism and the “living constitution” doctrine.
Comment 1/22/2006
TGirsch, like I said, I don’t have a big problem leaving protection from state & local governments primarily up to state constitutions, especially if strict interpretation of the limits of government power are applied. After all, it’s not so hard to move to another state if you don’t like the way one does things. The Geek with a .45 and I both did.
While I don’t know Publius’s way (link please?), the idea that we identify a problem with the law and deliberately set out to fix it by finding a new interpretation of the law rather than amending the law violates the rule of law.
Comment 1/23/2006
” After all, it’s not so hard to move to another state if you don’t like the way one does things.”
unless you are poor, or cannot find a job in another state, or have kid sin school, or need to be clsoe to sick relatives ….
And I am NOT a Tennessean. I am an American — I deserve and expect that my rights as an American are not to be trampled upon by any government. Rights are either inherent to me as a human being, meaning that they are valid everywhere, or we are just arguing about which government can abuse me.
Comment 1/23/2006
Kevin, yeah, that sounded a lot more cavalier than I meant it. While I think moving out of states that have no respect for your rights is a good choice, and that’s why people are moving out of collectivist states, it’s not good enough.
Kevin and TGirsch, I think I’m not understanding the central point here. I certainly do like the basic idea of more limits on state power, and I dislike the idea that rights can be infringed by abuse from federal OR state levels; two possible points of failure are worse than one.
But you and TGirsch seem to me to be saying that the importance of having all rights protected at the federal level, rather than relying on both federal and state levels, trumps all the other considerations I raised like democracy (the Supremes are unelected) and rule of law. Probably not the case. How am I misunderstanding? How exactly do you propose to protect all rights at the federal level from state & local infringement?
Comment 1/23/2006
EC:
Regarding non-originalist textualism, see here. It’s bloggered, so you may have to search for a post entitled “The Linguistic Case Against Scalia.” There’s another post here (see “A Reply To Feddie”) that references someone’s complaints about his case (you can follow links to the gripes before reading Publius’ responses).
Anyway:
But don’t you see? Below the federal level, there are no such limits, and no requirement for any such interpretation.
And that’s where I think you’re misunderstanding us. What I’m claiming is that we shouldn’t simply “trust” the states to protect rights and limit government powers. We should be requiring them to do so, and the strict constructionist/OI interpretation of the Constitution does not do this.
What’s ironic here is that there’s an originalist case to be made for my point of view. For example, even though the first amendment reads “Congress shall make no law…” it’s painfully clear that the framers intended that no one should be able to infringe free speech, or freedom of the press, or free exercise of religion. A strict textualist reading would claim that the restriction not only applies only to the federal government, but only to the federal legislature. Any reading of the writings of the framers (except for the very selective kind favored by Scalia) shows that their intent went well beyond this.
Got any evidence of this? (And just what constitutes a “collectivist” state, anyway?) I didn’t realize that there was a huge exodus out of New York and California, and into Alabama and Mississippi…
Well, the incorporation of the Bill of Rights is a Very Good Start, most importantly including most personal autonomy issues (right to privacy, right to medical self-determination, yes, including right-to-die and some abortion rights) under the penumbra of the ninth amendment.
In other words, it’s not good enough to interpret the constitution as nothing more than a limited grant of powers to the federal government. It has to be viewed as providing protection for basic individual rights — even ones not explicitly listed — or else it’s useless for protecting liberty.
Comment 1/23/2006
TGirsch said: “It has to be viewed as providing protection for basic individual rights — even ones not explicitly listed — or else it’s useless for protecting liberty.”
That’s a classic case of what I regard as the terrible danger the Left presents; disastrous solutions for serious problems. You have a hold on a genuine and serious problem here, that the federal Constitution provides little protection from state violation of basic rights, and propose a disastrous solution, ditching the bedrock principles of rule of law and rule by the people’s chosen representatives in hope that the Scalias and Souters will reign in the states if you tell them they should.
Comment 1/23/2006
When you decide what your interpretation must say first (protecting basic individual rights) and look at the law second, the law is a pretext not the rule. No more rule of law, just the rule of men.
Those men, of course, are the unelected branch of government; you don’t get to vote for them, and they never stand for reelection. If they fail to provide protection for basic individual rights, what do you do about it? At least if the President isn’t you can vote him out or wait 8 years.
Comment 1/23/2006
In Tennessee and Pennsylvania (my state), declarations of rights begin the constitutions.
http://www.google.com/search?q=cache:eS-GJPbWa8UJ:www.state.tn.us/sos/bluebook/online/section5/tnconst.pdf+tennessee+state+constitution&hl=en
http://sites.state.pa.us/PA_Constitution.html
Moving out of collectivist states:
http://www.google.com/search?q=cache:GYvghnwQH6YJ:www.goldwaterinstitute.org/pdf/materials/444.pdf+state+population+moving&hl=en
Comment 1/23/2006
EC:
Nice little corner you’ve painted yourself into: you’ve stated that fundamental rights must be protected, and then left no practical way to actually protect them. Leaving the protections open-ended would, in your words, be “disastrous,” but enumerating those rights specifically would be, in your words “an impossibly huge task.” So I guess we just have to shrug, give up and just pray that no slim majority ever infringes upon an unenumerated basic right, because allowing a body of government to prevent this would be “ditching … the rule of law.”
Of course, to this, I could respond in the way originalists often respond to objections of liberals when the limited powers granted by the constitution prevent a good idea from being implemented: Amend the constitution to allow it. If five jurists get “uppity” and strike down some law that infringes on what they perceive to be a basic right, and the legistlature and the populace overwhelmingly disagree with that assessment, they can always amend the document to allow that infringment, or to spell out that the right is not basic or protected. I believe in erring on the side of protecting rights rather than on the side of infringement.
I could understand your objections if I were arguing for a judicial power to enact laws rather than to strike them down, or if I were arguing for broad judicial power to disregard settled law; I’m arguing for neither of those things. I’m arguing that a more open-ended interpretation of the ninth — likely consistent with the original intent of the ninth and the reason for its vague wording — is likely our best available tool for protecting such rights.
If you’ve got a better idea as to how to protect them, then I’m all ears. But I can’t accept that burying our collective head in the sand and just hoping states will implement the same power restrictions and liberty protections that the federal government has implemented (or better ones) is the best we can do.
Here you raise a valid point but with a serious problem: you would tie their hands even further, preventing them from even having the authority to use their better judgment to protect such rights. Instead, they must act as if automata and not allow themselves to consider anything beyond what the framers intended when the document was written.
You want to propose an explicit method for impeaching unpopular justices? I’m all for it, so long as the bar is sufficiently high (although I’d be careful if I were you, as Scalia or Thomas would probably be among the first to go, along with Ginsburg).
You want more accountability for justices, and more assurances that they represent America adequately? Then join me in supporting a Constitutional amendment that requires two-thirds approval for all federal justices, including (and especially) SCOTUS justices. No more of this 51 votes gets you in crap, let’s require 67 and make sure that any justice who gets a lifetime appointment has broad (preferably bipartisan) support. (FWIW, such a requirement would only eliminate the most controversial of candidates; the vast majority of nominees at the federal level far exceed this level of approval, as I’ve previously documented.)
And how about we ask both parties to start insisting that nominees actually answer friggin’ questions in their confirmation hearings? Again, this would eliminate candidates whose views are outside the mainstream. Any judge who would completely overturn Roe v. Wade or who would interpret the Second Amendment into meaninglessness would never survive the hearing process. But a nominee who says he would, say, keep first-trimester abortions absolutely legal but would consider late-term abortion bans on a case-by-case basis, or who openly acknowledges that the Second Amendment guarantees an individual right, but that certain reasonable requirements and/or restrictions may be constitutional, would likely skate in. (And notice that these are roughly the positions a justice would have to take if they were trying to be elected.)
What concerns me above all else about this is this idea that justices shouldn’t concern themselves with what’s just, but stick to the strictest possible interpretation of the letter of the law. If we followed scripture like that, we’d still be kicking our women out of the village when they menstruate.
Comment 1/23/2006
And I was hoping you could do a wee bit better than the Goldwater Institute.
I’m sorry, but that study smacks of the work of someone who started from a desired conclusion and then massaged the evidence to fit that preferred result. You don’t score too many credibility points by arguing that it is Nevada’s favorable tax structure rather than its huge gambling industry that has resulted in its vigorous growth.
While this is certainly not a scientific conclusion, my wager is that people consider tax rates when moving only in situations like Memphis’, where a major metro area sits close to a state line. Otherwise, people move because there’s a job where they’re going. (Ironically, in Memphis, people most often move to northern Mississippi, which has a state income tax, while Tennessee has none…)
Although I guess after 25 years of the GOP working to convince people that we can tax less and simultaneously spend more, it shouldn’t surprise me that some people are naive enough to buy it and move because of it.
And by the way, since when are Alaska, Louisiana, and the Dakotas “collectivist states?” I also didn’t realize that Florida was a “non-collectivist” state…
Comment 1/23/2006
TGirsch said,
“I could understand your objections if I were arguing for a judicial power to enact laws rather than to strike them down”
The problem is positive rights. Let’s say, for example, a company I once worked at owned by activists decides to do something about the dangers of secondhand smoke and smoking. They change their company rules to allow smoking, and get one of the employees to bring an antismoking lawsuit with the claim that people have a right to a workplace free of smoke. The plaintiff presents a case on cancer, the defendant makes a few gestures toward a defense to preserve the appearance of the thing. The wrong five SC justices could decide to hear the case and decide yes, people do have a right to a smoke-free workplace, and the Ninth and Fourteenth Amendments say so.
I’m guessing you don’t seriously believe in the danger of a bad government here in the US. The worst you can seriously imagine is some southern sheriff keeping blacks from voting, so the possible abuses of rights under the system you propose don’t occur to you.
I can imagine some future Supreme Court getting five judges who will hold, for example, that people have a right to public discourse free of vulgarity, or people have a right to live without fear of guns, or people have a right to not have their religion offended, or people have a right not to be offended by religion, or many other things.
“But I can’t accept that burying our collective head in the sand and just hoping states will implement the same power restrictions and liberty protections that the federal government has implemented (or better ones) is the best we can do.”
Did you notice that Tennessee and Pennsylvania declarations of rights are longer and more detailed that the federal BoR? You seem to be talking as if states don’t have any protection of rights in their Constitutions. They aren’t as restrictive of power, but in the cases I’ve looked at their specific liberty protections are better. And I do think that the states should have more power within their borders than the federal government.
I guess the way in which I’m conservative is that I don’t want to fix a problem unless the fix would be better than the problem.
Comment 1/24/2006
EC:
You’re joking, right? We’ve had a bad government for the last five years!
Your smoking example is a weird one, in that it doesn’t have anything to do with legislation at all, and it has no bearing on any individual right, either.
The problem is, you’re taking what I proposed to absurd lengths. I would not confer upon the judiciary any power to enact policy; only to weigh policies that were enacted by the legislature and allow them to stand as written or to strike all or part of them down. None of this would allow them to do the types of things that you claim frighten you so much.
Probably the most controversial Supreme Court decision to date is still Roe v. Wade, yet it doesn’t do any of the things you complain about. It doesn’t require anyone to have an abortion, nor does it require anyone to provide one. All it does is to prohibit the government from banning the practice.
The Supreme Court cannot ban the manufacture, sale, or possession of guns without the help of the legislature. It cannot criminalize vulgarity without the help of the legislature. It cannot restrict private religious exercise without the help of the legislature. By itself, there’s little the Supreme Court (in particular, and the judiciary in general) can do. By its very nature, it can only undo things that legislatures do, or allow them to stand.
So it seems that you’re conferring upon me a belief I do not hold: that the courts should be able to single-handedly make policy. I do not hold this at all. The courts should, however, err on the side of protecting liberty and justice in deciding whether or not contested government actions before it can be allowed to stand.
Again, you’re misunderstanding what I’m arguing. I’m not saying that the states don’t have such protections; I’m saying that in an OI interpretation of the constitution, there’s nothing that requires them to have them. If State X decided to criminalize religious exercise, for example, under a strict constructionist interpretation of the Constitution, State X could do so. I’m saying that it shouldn’t be allowed to (as long as it did so for everyone). You claim you agree, but provide no method for actually guaranteeing this. That to me seems to be the point of disconnect.
To a certain extent, I actually agree. When you’re talking about things like setting speed limits or the drinking age or stuff like that, absolutely those things ought to be left to the states. And I have also argued in the past — and continue to argue — that states ought to be able to implement liberty protections that are more stringent than the federal ones (and indeed, most have done so). I simply argue that states should not be able to disregard liberties in ways the federal government cannot. Unfortunately, in the history of the States’ Rights movement, it has generally been this last that the states have fought for the right to do. That’s a shame, because it’s a permanent stain on the states’ rights idea.
I don’t think that’s either liberal or conservative, I think that’s a practical viewpoint. We merely disagree on whether the fix is better than the problem.
Comment 1/24/2006
I had a much longer comment, but I thought it would be more talking past each other.
“If State X decided to criminalize religious exercise, for example, under a strict constructionist interpretation of the Constitution, State X could do so.”
I think maybe this is the core area where I’m not getting you. If the legislature of State X decides that, the state Supreme Court stops them based on a strict constructionist interpretation of their state Constitution. It seems to me like you think the protection is federal or nonexistent. Could you maybe elaborate in that area? Thanks for your patience; clearly this issue is very important to both of us.
Comment 1/24/2006
EC:
Yep, that’s where you’re not getting me. As recent state-level anti-gay-marriage amendments have shown, amending state Constitutions generally isn’t that difficult. So, in your example, instead of the legislature of State X doing it, imagine state X amending its constitution to do that. I contend that there’s nothing to prevent this, and I contend that there ought to be something preventing this (or, at the very least, requiring amendment to be at least as difficult as at the federal level).
In the federal constitution, you need two-thirds of both houses of the legislature to approve it, and then three-fourths of the state legislatures have to approve it before it can be ratified.
At the state level, the bar is generally much lower. In Alabama, for example, three-fifths (60%) of both houses must approve, at which point a simple majority in general election can ratify the amendment. It’s easy enough that Alabama has a staggering 772 (!) amedments. No, I didn’t double-clutch the “7″
So with 60% of the legislature and 51% of the electorate (actually, 50.01% of those who show up to vote), the state of Alabama could ban non-Christian religious practice under a strict constructionist interpretation of the federal constitution.
That’s what I’m claiming could (and would) happen (even if not that specific example), and that’s what I think shouldn’t be allowed to happen. Religious liberty is a basic right, and no government — state, federal, or otherwise — should be able to infringe upon that right without overwhelming public and legislative support.
Comment 1/25/2006
In my state of Tennessee, I’ve just discovered, it’s even worse. The state constitution can be amended by simple majority approval of both houses of the legislature, and then by a simple majority of those voting for governor in the next election cycle. So 51% of both houses, followed by 51% of, say, a 35% turnout, and the state constitution is amended. It’s far too easy.
Comment 1/25/2006
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OK, now I’m understanding much better. I didn’t know it was that easy to amend some state Constitutions, and it certainly doesn’t seem like a good idea to make it that easy; compared to most nations our system has worked pretty well, but I’d still call that a flaw.
Now, your proposed solution appears to me to amount, in practice, to this:
Allowing state and federal Constitutions to be amended (reinterpret the federal, federal overrides state) by a 56% majority of nine carefully selected unaccountable people;
And telling them very solemnly that they are to use this power to protect unenumerated rights. (Admittedly orginalist/textualist/strict constructionist also amount to telling them very solemnly to do it that way.)
Perhaps I’m misunderstanding this too?
As an alternative, how about a federal amendment allowing state or federal Supreme Courts to hold state or federal laws or enforcement actions in violation of the rights of citizens in their jurisdiction? That would allow the federal SC to void a poll tax in Alabama, and the Pennsylvania SC to void a federal law requiring the return of escaped slaves, or the Texas SC to tell the ATF to go home.
It wouldn’t have worked for Emancipation. But as far as I see the main defect now is that it could prevent federal intervention in cases where mobs or gangs have the sympathy of the state SC. Historically though, mobs or gangs are the least of our worries.
Comment 1/25/2006
EC:
That’s rather an odd way of putting it, given that I’ve already stated I would support a formal removal process for justices, and given the fact that I’ve repeatedly asserted that justices cannot do anything, but only undo things (in whole or in part) done by some other branch of government.
Here, I think, we need to take a step back. In your view, why is the ninth amendment there? Why even bother with unenumerated rights?
The problem I see with your point of view is that by your admission, there are too many fundamental rights to enumerate, and as I’ve been trying to demonstrate, strict limits on federal power alone are not enough to adequately protect those rights.
As to your suggestion, I’m not sure I understand it well enough to intelligently comment.
But to get you closer to understanding my point of view, note that court decisions handed down in my method (overriding other branches) are almost never of the form “you must do this,” but rather are of the form “you can’t do this.” The court cannot create law where before there was none; it can only strike down what it determines to be unjust laws that some legislative body enacted.
As far as accountability is concerned, I’m kind of with the framers on that one: I don’t want justices to be directly subject to the whims of the electorate. They’re supposed to be taking the long view, rather than simply looking to the next election cycle. That said, I would support formalizing some sort of “impeachment” process for extreme cases. And as noted before, I also favor putting the accountability on the front end, by having nominees actually answer the tough questions before them.
And by requiring two-thirds approval for justices, you minimize the possibility of a slim majority by one party or the other resulting in the approval of highly partisan justices. (It remains to be seen whether Roberts and Alito will turn out as such, but I’m not optimistic based on what I’ve seen of Roberts so far…)
Comment 1/25/2006
OK, what is it that makes the justices unable to do anything, but only to undo things done by some other branch?
To try to make this concern a little more clear, by giving the power to find unenumerated rights by means of interpretation to the SC, you increase their power; as Kevin put in a discussion on corruption, their opportunity and incentive. In the past, they have been considered bound to the text of the Constitution, which affords little ground for discovery of positive rights, which are the area where they can do things rather than undoing things. One example (which is a good positive right) is reinterpretation of the Sixth Amendment, right to counsel in court, to mean not just that counsel could not be forbidden, but that it must be provided. But if they are not bound by the text of the Constition in discovery of rights, they may discover rights to a smoke-free workplace or any of the others on my earlier list; rights which demand government enforcement instead of protecting people from enforcement.
The whole purpose of the SC is to interpret the law as written, and that is the really the only limit on the power of their branch of government (coming back to elections and accountability). I don’t want them to be subject to the whims of the election cycle any more than you, but neither to I want to vastly increase the power of the unelected branch.
Here’s another alternative: an amendment explicitly allowing the federal SC to find unenumerated rights and apply them to the states and localities, but only to order government inaction, never government action.
Comment 1/26/2006
EC:
Because that’s pretty much how it is right now. I’m not calling for that to be changed. Actually, all I’m calling for is a minor tweak to the way the courts have historically operated. I guess that’s why your gloom-and-doom examples ring hollow for me.
You talk about them being bound by the text of the Constitution, and I’m not arguing against this. You seem to think that I am. I’m merely allowing them some wiggle room where the Constitution itself leaves wiggle-room (as in the ninth amendment, the definition of “cruel and unusual,” etc.). That, to me, seems to be the only viable alternative to specifically enumerating every basic right, which you’ve argued is folly.
It may not seem like it, but I’m mostly arguing for the status quo. No “vast incerease of power,” only a semi-fluid framework within which they can base their decisions. I’d grant them no more power than they have today. And I wouldn’t give them the authority to ever directly contradict the text of the Constitution; I would give them the authority to fill in the blanks a bit, as previously mentioned.
As to your proposed amendment, given the scope of what I’m suggesting, and how it compares to what we have right now, I don’t think any such amendment is necessary. And I do see the potential need, in extreme cases, for the courts to have the authority to order short-term (non-permanent) remedies, as in desegregation, for example.
Comment 1/26/2006
But if they are bound by the strict text of the constitution in that way, then the rights you have which are actually protected by the Constitution are virtually nonexistent.
Comment 1/26/2006
I think perhaps I’ve found the basic misunderstanding. Is there anything that would make the interpretation principles of originalism or strict constructionism inimical to your view of the proper application of the Ninth Amendment? If so, how would you state a better principle for Constitutional interpretation?
For convenience, the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Strict construction maxims:
Potestas stricte interpretatur: A power is strictly interpreted.
In dubiis, non praesumitur pro potentia: In cases of doubt, the presumption is not in favor of a power.
Comment 1/26/2006