Now that Bush is in for another four years, it’s time to consider the likely results, and how we may encourage the positive and minimize the negative.
One of the big domestic impacts will be the upcoming Supreme Court vacancies. Lots of Bush supporters have big objections to an “activist court”, and see it as interfering with questions that should be left solely up to legislatures.
I don’t see that as self-evident. The 14th Amendment says that states may not deprive people of the “privileges and immunities” of the United States, and most people have taken that as a strong hint that the Bill of Rights is supposed to apply to state governments as well as to the Federal Government. Unfortunately, this includes the 9th Amendment, which states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”, without offering any clue as to what those “others retained by the people” might be.
So how are these rights to be determined? By the standards of the time? Those standards are already expressed – by people voting for representatives to make laws, which incidentally makes any notion of other rights that are to be kept safe from legislatures meaningless. So, for that statement to have any meaning at all, there has to be some set of rights, not mentioned in the Constitution, that are supposed to be kept safe even from voting majorities or the transient standards of the time.
Is “privacy” one such right? It has the advantage of being buyneurontinonlinehere hinted at in the statement that people have the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. Of course “unreasonable” can be taken to be relative to existing law, and not to be an impediment to laws that might necessitate more extensive searches and seizures which then become “reasonable”.
But at any rate, the text of the Amendment explicitly denies the possibility that the text of the Constitution can be applied in every case where the question of whether something is or isn’t a right must be decided. Which means that we’re left with an arbitrary veto on Federal and State law in the hands of the Supreme Court.
Is this a bad thing?
As far as I can tell, the power to arbitrarily strike down law is better than the power to arbitrarily write law. And this power is not unlimited, since Supreme Court members can be removed by the Congress via the impeachment process. It’s just that the power to strike down laws is subject to less oversight than the power to write laws, which seems a good balance to me. And the Supreme Court has erred far more often in the direction of failing to strike down laws whose authorization cannot be inferred by any reasonable interpretation of the Constitution (i.e., one where a small section isn’t taken to render the rest of the document meaningless) than in striking down state laws that can reasonably be interpreted to be constitutionally kosher.
How would you classify ordering and administering city-wide school bussing programs to be striking down laws as opposed to arbitrarily writing laws?
How do you conclude that finding rights in emanations and penumbras is striking down lasw as opposed to writing them?
Rich,
SCOTUS didn’t order busing.
“As far as I can tell, the power to arbitrarily strike down law is better than the power to arbitrarily write law . . .”
That may be true, but that isn’t the problem. Legislatures are far less likely to do anything arbitrarily because they are more directly accountable to the will of the people.
And, more to the point, the very premise of democracy is that the will of the majority tends to be more just, less arbitrary, than the will of a few autocrats.
We have courts making law, under the guise of “reviewing” the laws of elected legislatures. This isn’t what the Constitution envisions and, moreover, it isn’t democratic.
“. . . And this power is not unlimited, since Supreme Court members can be removed by the Congress via the impeachment process.”
The impeachment process? You might just as well have said that the court’s power is “all but unlimited.” What real limit does “impeachment” really put on the courts?
Legislatures are far more limited than the courts for having to answer directly to the people through the normal process of elections, rather than the unusual and agonizing process of impeachment.
The real question is, are we ready for democracy?
“And, more to the point, the very premise of democracy is that the will of the majority tends to be more just, less arbitrary, than the will of a few autocrats.”
And the very premise of the American republic is that the will of the majority needs to be checked in several ways, and the guys chosen by the will of the majority need to be working at cross-purposes most of the time, in order to prevent tyranny.
“We have courts making law, under the guise of “reviewing” the laws of elected legislatures. This isn’t what the Constitution envisions and, moreover, it isn’t democratic.”
The Constitution doesn’t envision any specific mechanism for ensuring that unconstitutional laws don’t get passed, other than the different branches of government acting to stop that from happening. It turns out that the Supreme Court is in an excellent position to shoot down laws that aren’t Constitutionally kosher, so they end up doing the cleanup work most of the time.
And they don’t have power to make law, although they unfortunately have been known expand laws beyond what even Congress intended, as with the Civil Rights Act. But most of the time, they remove law rather than make it.
I’d love to see a President start vetoing like crazy and tell the country that his oath of office requires him to veto every single bill that doesn’t pass constitutional muster in his judgement rather than punting to the Supreme Court and hoping they do his dirty work for him. But I’m not holding my breath.
“Legislatures are far more limited than the courts for having to answer directly to the people through the normal process of elections, rather than the unusual and agonizing process of impeachment.”
Which is why legislatures can be trusted (well, trusted more than most human institutions) with the power to make law, while the Supremes should only get the power to remove law and judge based on existing law.
The privileges and immunities clause is not what the USSC generally uses in 14th amendment cases. That clause was generally eviscerated in an early post civil war case called (I believe) the slaughterhouse cases.
Could Congress (a funny name in this context) pass a law saying that in Federal Territory sex (even in married relations) is against the law?
The problem is that you have so many such right that enumerating them would be impossible.
Do you have the right to chew your food? Or could Congress pass a law saying all edibles must be liquified and drunk (on power?).
Do you have the right to travel by foot on the public thouroughfares or can you be required to use only wheeled vehicles in all cases every where off your property?
The list is endless.
One downside of the Bush reelection: his supporters will argue for a strong push for “strict constructionist” judges, along the Robert Bork model, who in particular called the Ninth Amendment an undivinable inkblot.
Laura Ingraham encourages her listeners to call their Senators to block the appointment of Arlen Specter to the chairmanship of the Judiciary Committee because he objected to Bork.
The Ninth Amendment is as badly ignored as the Second. A judge who can misinterpret, or refuse to interpret, the Ninth can easily fail to grasp the Second.
All things considered I’d rather have Bush appointing SCOTUS justices than John Kerry, but without an invigorated Ninth Amendment jurisprudence the prospects are still bleak.
“Which is why legislatures can be trusted (well, trusted more than most human institutions) with the power to make law, while the Supremes should only get the power to remove law and judge based on existing law.”
I’m afraid I don’t see much difference between the power to “remove” law and the power to enact it when the standard against which laws are being judged is not the plain meaning of the Constitution.
Take Roe v. Wade. The Court is ostensibly just “striking down” laws restricting abortion. But in so doing, they cut off the growing debate about changing those laws in the legislatures of the states. If every state had suddenly passed laws allowing abortion through the full nine months of pregnancy, the results would have been the same. Looks to me like legislating from the bench.
I don’t know where you stand on Roe, but I hope you appreciate the need for a clearer standard than whatever it is the Court is applying in Roe and so many other cases (especialy those dealing with separation and affirmative action).
I don’t know where you stand on the whole question of “original intent” versus “strict constructionist” versus “living document.” But the latter ought to scare anyone with any foresight. For if one day a penumbral “Right to Privacy” can be found there to allow a woman to abort her healthy fetus at 39 weeks gestation, on another day, some other “Right” can be discovered to allow (or forbid) just about anything you like.
You’ve got to have some kind of standard to prevent that kind of un-checked use of judicial power.
“but I hope you appreciate the need for a clearer standard than whatever it is the Court is applying in Roe and so many other cases (especialy those dealing with separation and affirmative action).”
A clearer standard is exactly what the 9th Amendment tells us we aren’t going to get.
Affirmative Action is a different animal. It arises from an expansive interpretation of a law passed by Congress that should have been partially struck down instead. Good old strict constructionism would clear that out, if we could but get it. But strict constructionism won’t get rid of Roe v. Wade, because the text of the document only allows you to strictly limit powers in accordance with the text, not rights.
But just because the 9th is an “undivinable inkblot” doesn’t mean it doesn’t exist or have a meaning.
“For if one day a penumbral “Right to Privacy” can be found there to allow a woman to abort her healthy fetus at 39 weeks gestation, on another day, some other “Right” can be discovered to allow (or forbid) just about anything you like.”
It’s a strange construction of “right” that would forbid things. I’m aware that some pervert the meaning of “right” to mean that others have a right to goods and services supplied by me whether I like it or not, but even the most liberal of Supreme Courts have yet to go there without some law passed by Congress to hang it on, such as the Civil Rights act. Usually, when they find a “penumbral” right (i.e., a right that is not explicitly stated in the document, and remember that the 9th states clearly that some such rights exist), they use it in the proper meaning of the word “right” to force government to allow things, which strikes me as far less dangerous than forcing government to forbid things.
Ken:
I think Eric may be worried about the power to balance one group’s right to do X with the harm (infringement on rights) X does to some other group. I was going to use tobacco as an example, but that is more a state law and state court action. Similarly Spitzer’s program (forbidding financial actions as conflicts of interest that at one time were not seen as such) and attempts to sue gun manufacturers for the damage their products ’cause’ is primarily at the state level.
But we can see where the Supreme Court might move to forbid. For example, they could rule along the lines of the militia theory of gun ownership. Private ownership is not protected, but the states can set up militias to defend themselves against a possible tyrany. Therefore, private ownership is not allowed because of the harm to others. Similarly they could rule to forbid certain forms of voting because they violate equal protection.
So the danger is probably more remote than Eric fear. If the Supreme Court gets into that game, however, it will much harder to contain than legislative or state court activism.
Matya no baka
Judicial activism isn’t limited to SCOTUS. But they set the tune.