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  • Precedent? Rum, sodomy and the lash!

    Posted by Jonathan on October 12th, 2005 (All posts by )

    Here’s the meat of an email about Miers that I sent to Lex:

    So many of these lawprof types just don’t get it. It’s a game to them. Anyway, the notion that you have to be a scholar to understand the plain language of the Constitution is wacko. I think it’s more like only a scholar could come up with the sophistries necessary to evade the clear meaning of the Constitution. I think it might be a good idea to appoint some non-lawyers to the SC for this reason, though it will never happen.

    Lex told me that I should blog these comments. I think he said that because he agrees with me but, being a fancy lawyer himself, doesn’t want to take the heat for it. To be fair to him, he did share these cautionary words:

    Well, there is a body of precedent that has developed even for the “plain language”, and the Constitution is a legal document and it is proper for it to be interpreted by lawyers in lawyerly fashion.

    Good point, but. . . What about bad precedents? Roe v. Wade has been stinking up the joint for quite a while, but you can’t get confirmed to the Supreme Court if you say that it should be overturned. Would a court of non-lawers have decided the case in the way it was decided? Would they be as resistant to overturning it? Who knows. Maybe they wouldn’t have taken the case. Or maybe they would have been just as political as the SC actually was (and is), but not being lawyers would not have had the chutzpa to invent a Constitutional rationale for their political biases. In other cases, like Kelo, I would have preferred the opinions of non-lawyers over lawyers any day. I don’t see how non-lawyers could have decided it worse, and they might have been more likely to stick to common sense (i.e., the property seizures were not for public use) and avoid the complex arguments that interest legal academics but that are going to keep the issue in litigation for years.

    The Supreme Court is a nice idea, but it’s become a concentrated little House of Lords with few constraints on its power. The non-lawyer idea isn’t going to fly but other alternatives might. Term limits, anyone?

     

    6 Responses to “Precedent? Rum, sodomy and the lash!”

    1. Ken Says:

      The Constitution explicitly says that people have rights that aren’t mentioned in the document, but gives no clue as to what those rights are.

      This unavoidably gives the Supreme Court nearly unlimited power to strike down laws.

      The biggest problem with the Supreme Court is not that they strike down laws that they shouldn’t, but that they leave in place laws that are blatantly, unquestionably unconstitutional, based on interpretations of phrases like “interstate commerce” that could not have appeared in a list of enumerated powers unless the entire rest of the list were meant to be completely redundant and without effect.

    2. Don Says:

      “The Supreme Court is a nice idea, but it’s become a concentrated little House of Lords with few constraints on its power. The non-lawyer idea isn’t going to fly but other alternatives might. Term limits, anyone?”

      “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed..”

      Until the XVII Amendment is followed up with the final branch of government being held directly accountable by the people, this will be not be a republic or a democracy again. Power unrestrained only begets more power for those who wield it.

    3. Shannon Love Says:

      “The Constitution explicitly says that people have rights that aren’t mentioned in the document, but gives no clue as to what those rights are.”

      As originally conceived, the Constitution did not grant Rights to the people but rather granted specific powers to the Federal government.

      The idea that the government granted rights to the people was rejected philosophically by the Founders. In their view, Rights existed naturally and a prior to any conceivable State. The People grant the State some limited power to abridge some of these natural rights a pragmatic necessity but unless the Constitution specifically granted the State the power to abridge a right it could not.

      Many of the Founders opposed the Bill of Rights because they feared that enumerating some Rights would eventually lead to the disappearance of the unenumerated Rights. In this fear they were correct. The modern view is that the State has the power to take away all Rights except the enumerated ones. Instead of looking at a new law and asking, “Does the Constitution explicitly empower the State to do X?” we ask, “Does the Constitution explicitly forbid the State to do X?” The original intent of the Constitution has been flipped.

      Both sides of the political spectrum are complicit in this evolution away from original intent. The Left does it in cases like Roe v Wade and the Right does it matters such a Federal drug law.

    4. Lex Says:

      Term limits for federal judges would require a Constitutional amendment. I don’t think the political will exists to do it. As a theoretical idea, I can see some value to it. I can also see a downside, judges ruling in a way that will ingratiate them with future employers or clients. There is no easy fix to our current situation.

    5. A Scott Crawford Says:

      Here’s a link to an on-line site that has several of James Wilsons writings. Wilson was on the ratification committee and one of the original SC justices. I don’t recall if this site contains Wilsons commentary on the Judicary Acts, but if not, these are also worth reading as he provides historical context.

      http://www.founding.com/library/lbody.cfm

      I think it’s worth noting that there wasn’t an expectation that the US Constitution was other than designed to be fundamentally altered by future generations. The balance between the various elements of the Republic changes with time and circumstance, and we should acknowledge the wisdom of this design as we enter into an era of a weaker and politicized Judiciary.

      Some era’s require more Legislative authority, some Executive, and some Judicial. The previous era saw a strong Court and Executive and a passive Legislative branch, while this era is being shaped by advances that empower the electorate directly. Because the Legislative branch is the appropriate means to check Executive and Judicial authority, this should inform our attitudes toward the Court.

      I think it’s fairly safe to claim that there’s a general sense within the electorate that the Judicial branch and legal profession has become too powerful. We see this is the referendum movements at the State level, in the drive for Tort reform, and the massive increase in day to day interest regarding Judicial appointments by the electorate at large. Yet it is exactly the slowness of change within the US legal culture that forces the electorate to temper it’s natural tendency to over-react. Like the Electoral College, the Judiciary is supposed to be frustrating and unpopular and indirect… and when there’s a solid super majority representing a popular electoral desire to check the Court, the Judiciary will either change on it’s own or be forced to change via legal, Constitutional means, as is appropriate.

    6. A Scott Crawford Says:

      Here’s a link to an on-line site that has several of James Wilsons writings. Wilson was on the ratification committee and one of the original SC justices. I don’t recall if this site contains Wilsons commentary on the Judicary Acts, but if not, these are also worth reading as he provides historical context.

      http://www.founding.com/library/lbody.cfm

      I think it’s worth noting that there wasn’t an expectation that the US Constitution was other than designed to be fundamentally altered by future generations. The balance between the various elements of the Republic changes with time and circumstance, and we should acknowledge the wisdom of this design as we enter into an era of a weaker and politicized Judiciary.

      Some era’s require more Legislative authority, some Executive, and some Judicial. The previous era saw a strong Court and Executive and a passive Legislative branch, while this era is being shaped by advances that empower the electorate directly. Because the Legislative branch is the appropriate means to check Executive and Judicial authority, this should inform our attitudes toward the Court.

      I think it’s fairly safe to claim that there’s a general sense within the electorate that the Judicial branch and legal profession has become too powerful. We see this is the referendum movements at the State level, in the drive for Tort reform, and the massive increase in day to day interest regarding Judicial appointments by the electorate at large. Yet it is exactly the slowness of change within the US legal culture that forces the electorate to temper it’s natural tendency to over-react. Like the Electoral College, the Judiciary is supposed to be frustrating and unpopular and indirect… and when there’s a solid super majority representing a popular electoral desire to check the Court, the Judiciary will either change on it’s own or be forced to change via legal, Constitutional means, as is appropriate.