Why Conservatives Care About Courts

Off Topic Politics & World Issues
21

[quote]Beowolf wrote:

I’ve yet to meet anyone, conservative or liberal, who is not very religious who is still anti-gay marriage.[/quote]

And? So what?

Courts check the people when the people, via their elected representatives, run afoul of higher law. Courts don’t have the power to check legislative “stupidity” - it checks according to the rule of law. Courts have never had a general mission of striking down unwise laws.

And, by the way, if people are “fucking stupid” - what are people that don’t even know basic civics?

Brown was a very hard case, even among the Justices that ultimately voted in favor of the decision.

Yes, but as measured by law, not by judicial whim. The Constitution’s “values” don’t change whichever way popular opinion blows. Constitutional “values” are designed to resist change and resist modification among a fickle public - or in the case of modern “progressives”, a minoritarian elitist position that thinks people shouldn’t be involved in self-government.

This paragraph is barely readable because of the outlandish claims. I don’t even know where to begin.

That said, America is, I think, reliably a center-right country, subject to movement based on the ideological pressures, political fatigue, and disgust at sloppy governance.

22

[quote]thunderbolt23 wrote:
Beowolf wrote:

If Gay Marriage was the norm you’d better believe they’d be clamoring for some judicial activism.

Incorrect - how do I know? Even the most zealous traditional marriage advocates think we should amend the Constitution to get their policy to be supreme law of the land, not have a panel of oligarchs declare it so.

Amend the Constitution, you say? You mean do all the hard work of democratic action? Changing people’s minds and getting a majority vote?

Why, it’s positively unprogressive.

[/quote]

Hahahaha!

23

Let’s be clear about the structure of the system.

The default is government by the people, via elected representatives who are subject to electoral recall at regular intervals if the people are unhappy with their representation. Certain, specific rights were deemed important enough to guard from the majority’s right to make laws to infringe them - those were set out in clear language, passed by supermajorities in Congress and ratified by 2/3 of the states. (The majority federal government was also originally limited by specific powers, but this is pretty much gone - however, the states have never been so limited, so it’s incorrect to say that the Constitution wasn’t written with governments with general powers in mind.)

Allowing judges to “interpret” the Constitution to create new meanings essentially subverts the whole system - you’re allowing an unelected oligarchy to decide something is so important that it needs to be taken outside of the normal system, an act that would otherwise need to be subject to the normal amendment procedure.

Sometimes interpretation is necessary - if you have a novel situation, such as new technology that didn’t exist when the Bill of Rights was passed, judges need to interpret the principles of the Constitution to apply them to the novel facts. However, that is a far different thing than allowing judges to say that the Constitution as written prohibited something that was a common practice when it was passed, but the judges “discovered” it was now applicable. For example, when the Warren Court “discovered” that the death penalty ran afoul of the 8th Amendment, that was classic judicial activism of the wrong kind (and was subsequently reversed by a later USSC - but it should never have been ruled that way to begin with).

In the context of this example, it’s quite obvious gays existed when the CA Constitution was enacted - and marriage did too. Somehow the people who passed it didn’t see fit to include sexual preference as a Constitutionally protected class - and allowing judges to do so now amounts to allowing them to amend the CA Constitution.

24

[quote]BostonBarrister wrote:
Let’s be clear about the structure of the system.

The default is government by the people, via elected representatives who are subject to electoral recall at regular intervals if the people are unhappy with their representation. Certain, specific rights were deemed important enough to guard from the majority’s right to make laws to infringe them - those were set out in clear language, passed by supermajorities in Congress and ratified by 2/3 of the states. (The majority federal government was also originally limited by specific powers, but this is pretty much gone - however, the states have never been so limited, so it’s incorrect to say that the Constitution wasn’t written with governments with general powers in mind.)

Allowing judges to “interpret” the Constitution to create new meanings essentially subverts the whole system - you’re allowing an unelected oligarchy to decide something is so important that it needs to be taken outside of the normal system, an act that would otherwise need to be subject to the normal amendment procedure.

Sometimes interpretation is necessary - if you have a novel situation, such as new technology that didn’t exist when the Bill of Rights was passed, judges need to interpret the principles of the Constitution to apply them to the novel facts. However, that is a far different thing than allowing judges to say that the Constitution as written prohibited something that was a common practice when it was passed, but the judges “discovered” it was now applicable. For example, when the Warren Court “discovered” that the death penalty ran afoul of the 8th Amendment, that was classic judicial activism of the wrong kind (and was subsequently reversed by a later USSC - but it should never have been ruled that way to begin with).

In the context of this example, it’s quite obvious gays existed when the CA Constitution was enacted - and marriage did too. Somehow the people who passed it didn’t see fit to include sexual preference as a Constitutionally protected class - and allowing judges to do so now amounts to allowing them to amend the CA Constitution.[/quote]

Right. Plenty of men were openly gay in the 18th century.

Wait… did they put in protection for straight marriage? Can we ban that if we want to? How about interracial marriages? Are all those laws banning that unconstitutional?

A woman has the right to marry a man, yes?
Well, in order to prevent sexual discrimination, we must also give a man the right to marry a man.

25

[quote]
BostonBarrister wrote:
Let’s be clear about the structure of the system.

The default is government by the people, via elected representatives who are subject to electoral recall at regular intervals if the people are unhappy with their representation.

Certain, specific rights were deemed important enough to guard from the majority’s right to make laws to infringe them - those were set out in clear language, passed by supermajorities in Congress and ratified by 2/3 of the states.

(The majority federal government was also originally limited by specific powers, but this is pretty much gone - however, the states have never been so limited, so it’s incorrect to say that the Constitution wasn’t written with governments with general powers in mind.)

Allowing judges to “interpret” the Constitution to create new meanings essentially subverts the whole system - you’re allowing an unelected oligarchy to decide something is so important that it needs to be taken outside of the normal system, an act that would otherwise need to be subject to the normal amendment procedure.

Sometimes interpretation is necessary - if you have a novel situation, such as new technology that didn’t exist when the Bill of Rights was passed, judges need to interpret the principles of the Constitution to apply them to the novel facts.

However, that is a far different thing than allowing judges to say that the Constitution as written prohibited something that was a common practice when it was passed, but the judges “discovered” it was now applicable.

For example, when the Warren Court “discovered” that the death penalty ran afoul of the 8th Amendment, that was classic judicial activism of the wrong kind (and was subsequently reversed by a later USSC - but it should never have been ruled that way to begin with).

In the context of this example, it’s quite obvious gays existed when the CA Constitution was enacted - and marriage did too. Somehow the people who passed it didn’t see fit to include sexual preference as a Constitutionally protected class - and allowing judges to do so now amounts to allowing them to amend the CA Constitution.

Beowolf wrote:
Right. Plenty of men were openly gay in the 18th century.

Wait… did they put in protection for straight marriage? Can we ban that if we want to? How about interracial marriages? Are all those laws banning that unconstitutional?

A woman has the right to marry a man, yes?
Well, in order to prevent sexual discrimination, we must also give a man the right to marry a man.[/quote]

Firstly, 19th century.

Secondly, are you suggesting they weren’t aware gay people existed?

Thirdly, the government isn’t required to offer a heterosexual marriage package, so yes, you could - and the ruling wouldn’t stop you either.

The ruling essentially holds that if the state offers heterosexual marriage, the state needs to offer the exact same thing to homoesexuals, and call it the same thing (the real holding is that they have to call it the same thing, given CA already had domestic partnership that gave the same rights as marriage).

Fourthly, do you understand that generally the government can discriminate against people unless the discrimination is based on some protected characteristic?

Fifthly, do you understand that sexual preference has never before been considered one of those protected characteristics under the CA or any other state constitution?

Sixthly, do you understand the point about a court amending the constitution by expanding its meaning beyond what was intended when it was passed by the required supermajority procedure?

26

Sex is also not a protected feature, and we protect it plenty.

I’m saying that they considered gays about as much as they considered slaves. As well, I’m saying even if they were aware of gays, most gays were probably married with kids, or spent most of their time on the sea.

And yes, I understand your final point.

Question (Disclaimer: Not being factitious): If the constitution does not have marriage built into it, wouldn’t a ban on gay marriage be moot point, as the government cannot constitutionally define marriage in the first place?

Doesn’t the constitution guarantee equality under the eyes of the law for all citizens? Or only protected characteristics (race/religion/ect)?

Can you recc. any books (preferably E-books) on constitutional law?

27

[quote]Beowolf wrote:
Sex is also not a protected feature, and we protect it plenty.[/quote]

The courts have created the whole idea of “suspect classes” out of whole cloth from the Equal Protection Clause. That’s not a reason to extend the concept further than race (the only true “suspect class” requiring strict scrutiny under USSC precedent) or gender (a partial “suspect class” that gets intermediate scrutiny).

And thank you for illustrating again why slippery slope arguments are valid concerns in our political/judicial system.

The CA state Equal Protection Clause is interesting in that it incorporates the understanding applicable to the U.S. Equal Protection Clause:

http://www.leginfo.ca.gov/cgi-bin/waisgate?waisdocid=69651918195+0+0+0&waisaction=retrieve

[i]CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS

SEC. 7. (a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal protection of the
laws; provided, that nothing contained herein or elsewhere in this
Constitution imposes upon the State of California or any public
entity, board, or official any obligations or responsibilities which
exceed those imposed by the Equal Protection Clause of the 14th
Amendment to the United States Constitution with respect to the use
of pupil school assignment or pupil transportation. In enforcing
this subdivision or any other provision of this Constitution, no
court of this State may impose upon the State of California or any
public entity, board, or official any obligation or responsibility
with respect to the use of pupil school assignment or pupil
transportation, (1) except to remedy a specific violation by such
party that would also constitute a violation of the Equal Protection
Clause of the 14th Amendment to the United States Constitution, and
(2) unless a federal court would be permitted under federal
decisional law to impose that obligation or responsibility upon such
party to remedy the specific violation of the Equal Protection Clause
of the 14th Amendment of the United States Constitution.
Except as may be precluded by the Constitution of the United
States, every existing judgment, decree, writ, or other order of a
court of this State, whenever rendered, which includes provisions
regarding pupil school assignment or pupil transportation, or which
requires a plan including any such provisions shall, upon application
to a court having jurisdiction by any interested person, be modified
to conform to the provisions of this subdivision as amended, as
applied to the facts which exist at the time of such modification.
In all actions or proceedings arising under or seeking application
of the amendments to this subdivision proposed by the Legislature at
its 1979-80 Regular Session, all courts, wherein such actions or
proceedings are or may hereafter be pending, shall give such actions
or proceedings first precedence over all other civil actions therein.

Nothing herein shall prohibit the governing board of a school
district from voluntarily continuing or commencing a school
integration plan after the effective date of this subdivision as
amended.

In amending this subdivision, the Legislature and people of the
State of California find and declare that this amendment is necessary
to serve compelling public interests, including those of making the
most effective use of the limited financial resources now and
prospectively available to support public education, maximizing the
educational opportunities and protecting the health and safety of all
public school pupils, enhancing the ability of parents to
participate in the educational process, preserving harmony and
tranquility in this State and its public schools, preventing the
waste of scarce fuel resources, and protecting the environment.

(b) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked.[/i]

Of course, the USSC has thus far pointedly refused to extend its “suspect class” classification to homosexuality.

The dissents seem to understand this decision amounted to lawmaking by the judiciary - thus the usurpation of the legislative function:

From associate justice Baxter’s dissent (joined by associate justice Chin): "Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage … is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow.

If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means."

From associate justice Corrigan’s separate dissent: “The principle of judicial restraint is a covenant between judges and the people from whom their power derives. … It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning. … If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

The majority itself concedes that “[f]rom the beginning of California statehood, the legal institution of marriage has been understood to refer to a relationship between a man and a woman.”

But it fails to apply that insight that the relationship between a man and a woman is an essential characteristic of the very “right to marry” that it is creating in this opinion (as I pointed out before, there is not otherwise any right to marriage, heterosexual or homosexual, in the CA Constitution) - and that no one, until recent years, would have pretended otherwise.

And going to my entire point, look at how the CA Supreme Court itself justifies its overturning of a CA ballot initiative defining marriage as between a man and a woman (which was passed in direct response to the Massachusetts Supreme Court’s making stuff up in the MA Constitution).

In the majority opinion, chief justice George writes: “If civil marriage were an institution whose only role was to serve the interests of society, it reasonably could be asserted that the state should have full authority to decide whether to establish or abolish the institution of marriage.”

The “state,” there references the CA citizenry, whether acting directly via ballot initiative, as they did, or by proxy via elected representatives. And prior to this decision, that’s exactly the power they did have, because it is not prohibited to them by the CA Constitution.

Then later, George tries to defend his usurpation of the this power by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” Yeah, that’s right - when you stick with what the people actually passed via the proper supermajority procedures. But not when judicial activists disingenuously stretch the meaning beyond what the people who adopted them could possibly have meant.

[quote]Beowolf wrote:

I’m saying that they considered gays about as much as they considered slaves. As well, I’m saying even if they were aware of gays, most gays were probably married with kids, or spent most of their time on the sea.[/quote]

That’s exactly wrong - the Equal Protection Clause that was put into the 14th Amendment of the U.S. Constitution, and which was subsequently mirrored in a lot of state constitutions, was put in on the heels of the Civil War and had ONLY former slaves in mind.

[quote]Beowolf wrote:

And yes, I understand your final point.

Question (Disclaimer: Not being factitious): If the constitution does not have marriage built into it, wouldn’t a ban on gay marriage be moot point, as the government cannot constitutionally define marriage in the first place?[/quote]

The government can’t define marriage as something within the Constitution because it’s not in the Constitution.

However, the Constitution could be amended to include marriage.

In CA and in other states with direct ballot initiatives, the people have the power to define marriage, because it’s not prohibited to them by a particular restriction (I’m using “particular restriction” to define individual rights guaranteed under the Constitution, like freedom of religion - this individual guarantee serves as a restriction on the otherwise general power of the people).

Also, a state legislature isn’t banned from defining marriage under its general police powers, because it’s not prohibited to them by a particular restriction - and given the broad interpretation of Congress’ commerce clause power as power to legislate regarding anything that broadly, in the aggregate would have a tendency to affect interstate commerce, I’d say Congress could legislatively define marriage as well.

[quote]Beowolf wrote:
Doesn’t the constitution guarantee equality under the eyes of the law for all citizens? Or only protected characteristics (race/religion/ect)?[/quote]

The Constitution guarantees equal protection under the law for all citizens (14th Amendment, Equal Protection Clause) - but the original intent of that wasn’t that the government couldn’t pass any law that differentially impacted any particular subgroup. If you think about it for a second, you’d realize that would be an untenable situation, and the government really couldn’t pass any laws at all in that case. Although I like the implications for our tax code, that’s just not what it means.

[quote]Beowolf wrote:
Can you recc. any books (preferably E-books) on constitutional law?[/quote]

Unfortunately I didn’t bring a lot of my books with me - they’re at home on my bookshelf in Washington.

However, I can recommend a bunch off the top of my head - but most of them don’t deal with “Constitutional Law” overall, but rather are focused on some particular aspect. That said, here’s a good one that looks at the Constitution on a clause-by-clause basis - I’m not aware of any others that do this that aren’t law-school casebooks (and even they skip a bunch).

Some of these are kind of expensive, because they are hardcover that’s meant for academic runs - thus probably not on eBook either - but you could probably find them in a library or a law library:

http://www.heritage.org/about/bookstore/constitutionguide.cfm

Here’s one with some interesting historical insights in the development of some of the big cases in Constitutional jurisprudence - also in softcover:

Another good overall look at the Constitution - this one may be on eBook and is in softcover:

A good one on property rights by a former professor of mine:

A good way to acquaint yourself with the 1st Amendment (and the 2nd Amendment) would be to read the law review articles that Eugene Volokh has written - you can get a lot of them from links on his faculty website:

http://www.law.ucla.edu/volokh/

David Bernstein has some good 1st Amendment stuff too:

http://mason.gmu.edu/~dbernste/BernsteinCV.html#Other

Orin Kerr has a lot of good writings on the 4th and 5th Amendments:

http://www.law.gwu.edu/Bibliography/showbibPRINT.asp?uid=3568

That ought to get you started…

28

Thank you.

Oh, and when I say they considered them as much as they considered slaves (less than actually) I meant the founders.

29

[quote]Beowolf wrote:
Thank you.

Oh, and when I say they considered them as much as they considered slaves (less than actually) I meant the founders.[/quote]

Back during the days of the Founders homosexual sodomy was often banned completely by criminal laws, so I don’t think they thought they were giving its practitioners any rights.

The situation for homosexual sodomy wasn’t any different when the 14th Amendment was passed, so I also don’t think anyone thought they were creating a gay-rights provision when they passed the 14th Amendment (although, appropo to your former point, I don’t think anyone was considering women’s rights either).

30

[quote]thunderbolt23 wrote:
Incorrect - how do I know? Even the most zealous traditional marriage advocates think we should amend the Constitution to get their policy to be supreme law of the land, not have a panel of oligarchs declare it so.

Amend the Constitution, you say? You mean do all the hard work of democratic action? Changing people’s minds and getting a majority vote?

Why, it’s positively unprogressive.
[/quote]

I know this is going back a ways, but I’m just reading this thread now.

Wow, amend the constitution. What a novel concept. I seem to remember arguing that this is the appropriate place to tackle issues that the courts are unable to see your way given the current set of rules.

The job of the courts is not to maintain tradition or otherwise accept/create limitations on rights.

31

[quote]vroom wrote:

I know this is going back a ways, but I’m just reading this thread now.

Wow, amend the constitution. What a novel concept. I seem to remember arguing that this is the appropriate place to tackle issues that the courts are unable to see your way given the current set of rules.

The job of the courts is not to maintain tradition or otherwise accept/create limitations on rights.[/quote]

Actually, it is, almost definitionally - first, courts have always adhered to “tradition” because of the point of preserving the rule of law. Inherent in the rule of law are expectations of stability and predictability. American courts, from the beginning, have had this approach, which has its origins in British common law.

Second, courts do, in fact, accept limitations on rights because they are bound by the written law as much as any other political body. Courts don’t have a blank check to create new rights as they feel. Rights not affixed by law are subject to creation, modification, or deletion by democratic process.

The mistake you keep making over and over and over is that the role you want courts to have - as change agents who create new rights based on new attitudes, etc. - doesn’t exist in the American system. We can have a discussion on the merits on the system that you prefer, and that is fine - but courts simply don’t operate on that basis as the Founders intentionally envisioned and created a system that didn’t operate that way. That’s not historical accident - that is deliberate design.

So, when you say “it’s not the job of courts to accept/create limitations on rights”, you are factually wrong. It might be better to say “I think it shouldn’t be the job of courts…” - but you should try and understand the role of courts as they are, not as you want them to be for purposes of discussion.

32

[quote]vroom wrote:

Wow, amend the constitution. What a novel concept. I seem to remember arguing that this is the appropriate place to tackle issues that the courts are unable to see your way given the current set of rules.[/quote]

Also, this deserves a quick reply.

As you suggest it, the process of amending the constitution as a matter of playing “defense” to a court playing “offense” creating new rights, policy, etc.

That makes no sense, because if you give the judiciary the license to be a policymaker in that way, now you have an undemocratic political body effectively “amending” the constitution, creating the highest law of the jurisdiction, without any of the hard mechanics of the amendment process, which is intentionally near-impossible.

If amending the constitution via democratic process is intentionally so hard, why give a small panel of largely unelected lawyers the ability to create law of the same stature minus all of the high thresholds of procedure - supermajorities, waiting periods, etc.? It makes no sense to give a court that kind of plenary power to essentially “amend” the constitution to then force a democratic supermajority to go in and change the judicial lawmaking. That’s preposterous and counterintuitive.

We put those high thresholds in place for a very good reason - of something is going to be made “the law of the land”, it damn well better have an amazing amount of support - and judicial lawmaking stands contrary to all of that effort in making it hard to change the law of the land. It simply doesn’t make sense in a republican form of government, because under your suggestion, the easiest route to create the supreme law of the land is not any emanation of interest from the people, but rather from a small, unrepresentative body that has little accountability.

There isn’t an American thinker that shaped our system that wanted that kind of power in the hands of group that lacked such political accountability - and, that is the system we have, and for the better. Nothing has changed that, even as modern “progressives” have grown impatient with the democratic process to get their view of “the right of way of thinking” converted into law.

33

[quote]thunderbolt23 wrote:
Actually, it is, almost definitionally - first, courts have always adhered to “tradition” because of the point of preserving the rule of law. Inherent in the rule of law are expectations of stability and predictability. American courts, from the beginning, have had this approach, which has its origins in British common law.[/quote]

A generally consistent application of law is not the same as preserving “tradition”.

You like to disagree with me don’t you? I did not imply that courts don’t accept limitations on rights. However, you will find that most constitutions provide a wide swath of rights and often suggest that anything not outlawed is allowed.

Again, you are wrong. I do not expect courts to be change agents at all. However, as life changes around them, courts are forced to make decisions based on old laws. At times, this causes surprising results.

For example, many laws were created before the existence of the Internet. Lo and behold, courts get cases that involve the Internet from time to time.

Change happens around us, all the time, and courts exist in the same world as us, some of the time anyway. To expect courts to only deal with the same issues repeatedly, especially with respect to supreme courts at the state or federal level is ludicrous.

I think you missed the point. It is neither the job of the courts to accept limitations nor to create limitations. The court is not there to make change, but neither is it there to ensure stasis. Decisions, each one, are based on the circumstances of the times and how those changing circumstances relate to the rules on the books.

If you could get beyond your ridiculous notion that I want anything in particular from the courts it might make things a lot easier to discuss.

I’ll say it again, it is not the job of the courts to accept/create limitations on rights. It is their job to hear cases that involve interesting legal issues, perhaps interesting due to their intersection with existing laws in new and novel ways, and to make a decision consistent with those various laws.

This may involve accepting a limitation or it may involve removing a limitation, but their purpose is not to do either of those things. Their purpose is to figure out how to resolve legal issues within the confines of the law.

34

[quote]thunderbolt23 wrote:
As you suggest it, the process of amending the constitution as a matter of playing “defense” to a court playing “offense” creating new rights, policy, etc.

That makes no sense, because if you give the judiciary the license to be a policymaker in that way, now you have an undemocratic political body effectively “amending” the constitution, creating the highest law of the jurisdiction, without any of the hard mechanics of the amendment process, which is intentionally near-impossible.[/quote]

Not at all.

Again, as times change, the courts are forced to hear issues that are not perfectly covered by existing laws. When this creates a result that the populace does not intend, the exact appropriate response is to adjust the existing laws, at the necessary level, within the process required.

This is the process. Constitutions do get amended. And, they are purposely difficult to change. The problem that you seem to miss is that things are working as they should, but that you don’t like it and want it to be different.

The constitution is doing exactly as it should when it makes it difficult for the tyranny of the majority to impose their simple preferences on others. After all, if it was such a clear cut and agreed upon issue, it would not be so difficult to effect the change in question.

One party is always going to get pissed off by this difficulty, in the short term, but over the course of generations this is an incredibly liquid process which will be resolved one way or the other fairly shortly.

35

[quote]vroom wrote:

A generally consistent application of law is not the same as preserving “tradition”.[/quote]

In our system, that is exactly what we have - that is the point of “precedent”. While precedent is not Gospel, courts have always deferred to tradition. Don’t believe me - go read cases.

Courts expressly state their role in upholding tradition all the time - and rightly so. Courts have always been obliged to respect the decisions of other courts in the past.

It’s not that I like to disagree with you - it’s that you want to argue from a position of factual inaccuracy.

Constitutions do provide a wide swath of rights and allow everything else to be in the domain of democratic action - I have never argued to the contrary.

How do you reconcile the statement above - “I don’t think courts should be change agents” - with the statement in another thread that went (paraphrasing) "folks, this is how we advance civil freedoms and liberties’…?

Life changes, and courts are expected to apply old laws to new circumstances. But that is a far cry from making what amounts to popular policymaking, for a number of reasons, but perhaps the most important one being - there are no guidelines for a court to adopt other than political preference of its members.

How does a court take the “social temperature” to see if a new “civil right” need be created? In CA for example, the bulk of the people do not approve of gay marriage, yet the CA Supreme Court seemed to decide that, yes, times have changes, and a new right must be created, even in defiance of the people’s will.

Courts aren’t the appropriate bodies to be taking the “social temperature” - the should apply the law to new circumstances, no doubt, and defer to the legislature in murky areas.

[quote]For example, many laws were created before the existence of the Internet. Lo and behold, courts get cases that involve the Internet from time to time.

Change happens around us, all the time, and courts exist in the same world as us, some of the time anyway. To expect courts to only deal with the same issues repeatedly, especially with respect to supreme courts at the state or federal level is ludicrous.[/quote]

Courts deal with whatever issues are brought to them by individual litigation. Nor do they “deal with the same issues repeatedly”, whatever that means exactly.

Change does indeed happen all around us, and the courts aren’t immune to having new problems because of it - but that isn’t the problem. The problem is when courts create new law at the highest level based on their view of what the “change” means, and that is unacceptable.

Back to gay marriage - is gay marriage one of the good, new developments of change? Or is it a bad one (not all change is good, of course)? Who knows - but courts don’t get to decide that. “Change” might be beneficial, it might be harmful - societies can both progress and rot - and courts have never, ever been charged with making sure raw “change” gets protected by the supreme law of the land, because they aren’t in a position to decide if the change is good socially or bad.

I can’t state this more plainly - it is exactly the job of the court to do those things. Exactly. Judges take oaths to the constitution just as all other politicians do. They are bound by the law. The court absolutely must accept the limitations and decide cases respecting those limitations.

Because if you are right - the Founding Fathers were wrong. Here is the crux, again - this may be the court of your preference, but it isn’t the court of reality. When you say the above, you are factually wrong about the role of courts in the American system.

The court is there to provide a level of stasis - that is the very point of the rule of law, compared to the rule of men.

Courts, not privileged to work in a field of mathematics, often must err on one side of the other. Courts, by nature of their role in the American system err on the side of stasis. That is their charge, and it always has been.

I can only go by your descriptions as something that you want from courts because your descriptions on how courts operate are, simply, wrong. Courts don’t do the things you say they do, they don’t assume the roles you have suggested here. Not in our system.

Factually incorrect. This might be a preference of yours, but it is contradicted by what we actually have.

Perfect example - the 9th Amendment has never been recognized as a blank check to recognize new and emerging rights, despite calls by people like yourself that think a court’s role is to not be bound by limitations in law. If courts truly had no call to “accept/create limitations on rights”, the 9th Amendment would be the engine of “rights creation” that would enable a court to do exactly what you suggest.

This proposition has been routinely defeated as even remotely possible. Despite the language of the 9th Amendment - which could be shoehorned into your idea that court’s need accept no limitations to creating/advancing new rights - in over 200 years of jurisprudence, even at the height of judicial activism, that idea was rejected.

What you suggest is not novel - people have thought of it before. That approach to jurisprudence has been left on the cutting room floor, so to say “courts don’t have to accept limitations on rights, etc.” is to be trafficking in incorrect information. They do accept limitations - look no further than the Equal Protection clause.

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[quote]vroom wrote:

Again, as times change, the courts are forced to hear issues that are not perfectly covered by existing laws. When this creates a result that the populace does not intend, the exact appropriate response is to adjust the existing laws, at the necessary level, within the process required.[/quote]

I have never disagreed with that - but that isn’t the issue. The issue is how much rope a court has to engineer decisions that would spark a legislative response. If courts act within their bailiwick, your statement is fine. If they venture out of it, and force legislative response, that is bad news and is antidemocratic.

Nonsense - the question I have always focused on is “who decides?”. The system isn’t working as it should when judiciaries overstep boundaries and violate separation of powers.

Would you be ok with a court striking down minimum wage laws and workweek hours limitations on the basis they violated the “right to contract”? Would that be the “constitution working like it is supposed to” and the supermajority would have to amend the constitution to reinstate minimum wage and workweek laws?

Based on your model, such a move by courts would be “the constitution working as it should”.

What I don’t like are inappropriate political bodies making public policy, whether that policy is to my liking or I disagree with it. If the USSC decided that all tax rates had to be an equal percentage for all payers - a flat tax, which I support as a policy matter - I’d disagree with the ruling even as it benefits my political preferences[. Wrong body to make the decision.

What you describe as “the system working” isn’t.

This is silly, of course, because the judiciary is not a general check on the often-quoted “tyranny of the majority”. Outside of a few very specific areas, the judiciary is quite fine with the “tyranny of the majority”, because the constitution it is interpreting favors kicking the bulk of policy decisions into the democratic arena.

The general check against the “tyranny of the majority” is in the legislative and executive branches - go read the mechanics on how a law is passed. The republican form, the bicameral legislature, the division of powers, the presidential veto - these are your vaunted checks against the “tyranny of the majority”. Courts don’t have that job - they only ask one question in that regards: can a legislature pass such a law?

Note the difference: not should the legislature pass such a law, but can the legislature pass such a law?

And to address the much abused term “tyranny of the majority” - it’s a silly overwrought phrase. After all, protecting traditional marriage from other marriage variants is, no doubt by the “progressive” commandments, a “tyranny of the majority visiting their simple preferences on others”, but what of 99% of the other laws?

What law is just good majoritarian public policy, and what is “tyranny of the majority”? No one can create a good list, because it will be based on personal policy preferences. Higher taxes at the higher income levels - a “tyranny of the majority”?

It is a simple, empty phrase, but most importantly, the last government body to decide what constitutes a “tyranny of the majority” is a judiciary. A judiciary only cares if the law in question violates a higher law. If it doesn’t, and never has, and the law hasn’t changed, a court doesn’t get to pull its chin and decide, as a policy matter, that a mean ole majority shouldn’t pass such laws.

And here we see the true limitation - you see this as a “party” disagreement. You see it as a matter of political difference. I don’t. I think it is policy neutral, and I have said so over and over.

The question is not “is a particular policy good?” - it is “who decides?”. I don’t care if we get gay marriage or don’t, as long as the appropriate body decides the political question. “Progressives” have no such hesitations, as since we are marching linearly toward the more-perfect future, it doesn’t matter how a particular law is enacted, as long as it becomes the law that governs.

That is a particularly naive sentiment, and the Founding Fathers were aware of it and designed around it. They knew political fads come and go, and wanted to build a system that decentralized policymaking subject to the messiness of democratic action. “Progressives” who see a judiciary as a policymaker to act as a policy check against the “tyranny of the majority” have forgotten all the skepticism of what the Founding Fathers had of unaccountable, unrepresentative power, because such is an easy sacrifice on the pathway to a “better world”.

In another thread, you had a bit about the classic “Power Corrupts”. Yep, and that is precisely why the model of policymaking judges was avoided in our system’s design and the general check against “wild democracy” is in the other branches.

If you are worried about “power corrupting”, then you haven’t thought seriously or deeply about your view of how judges are supposed to act. The two concepts - the caution that power corrupts and the idea that we should put such power in an unelected, unrepresentative branch of government - can’t be reconciled, so you will have to give up one or the other.