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December 09, 2004

Comments

"Judicial activism" is another name for "We didn't get the results we wanted, so the process must be wrong".

It's weak thinking.

There are rights that the people have, that the Constitution does not enumerate. We know this, because the Constitution says it. Who determines what these rights are, if it is not the courts? Which branch of government decides what rights not enumerated in the Consitution the people retain?

The author of this article can not answer, for he does not comprehend the question.

As I understand it, the Constitutional basis of Roe vs. Wade is that there is a Constitutional right to privacy: neither state nor federal government have a right to step into a doctor/patient relationship unless someone is being harmed.

As most opponents of legal abortion claim a religious justification for their opposition to safe, legal termination, this surely also brings in another Constitutional right - for every person to have freedom of religion, and no person to have the right to impose their religious beliefs on another.

I don't doubt that Von and Katherine can and will correct me!

Finally, of course, most people support women having free access to safe, legal, abortion, simply because it's the right thing to do. It's fundamentally wrong to criminalize abortion, because the results are fundamentally wrong.

Anyone who supports criminalization of abortion has either not thought the consequences through, or is declaring that they support
-Treating any woman who miscarries outside a hospital as a possible criminal, to be harrassed and bullied and blamed.
-That women should die in illegal abortions
-That women should become sterile because of abortions incompetently carried out.
-That women seeking abortions should be harassed and bullied and, yes, often raped: many doctors who provided a reasonably safe illegal abortion in the criminalization days were not nice guys: they were providing a criminal service to women who desperately needed it.
-That unwanted children should be born and warehoused in institutions
-That there should be more and more stories like this, and this - only worse: Gretchen and Martina got the treatment they needed, which they would not have done if Roe vs. Wade had not passed all those years ago.

All of these things are an inevitable result of criminalizing abortion. And anyone who's thought it through, knows this. Some people support criminalizing abortion anyway. For some people, their support is only a result of not thinking it through.

Oh yes: And as far as I can see, "activist judge" is codeword for "judge who interprets the law in a way I don't agree with".

If you don't think that the US Constitution limits the power of states to infringe on individual liberties, then it is easy to say that decisions so holding are not legitimate. If you do think it does provide such limits, then there's no structural problem with the decisions.

Jane Galt goes the additional step though, of arguing that not only does the US Constitution not contain such limits, but that everyone knows that it does not. And that those who behave as if it does are acting in bad faith, because they wish that it did.

Who knows, maybe this is a fair characterization of the liberal lawyers with whome she had the argument she describes in the text. It's not a fair characterization of a whole lot of folks that I know, and I don't see any reason the believe that it's a fair characterization of the views of members of the Warren court, etc. It's true that neither the EPC nor the DPC say anything about marriage, but I don't see any reason to believe that the authors of Loving thought they were just making stuff up when they struck down those statutes.

The most egregious mind-reading foul aside, who here is just making stuff up? "The children of middle class white people almost all go to private school." Or "[m]ost people seem to think of the constitution as a guarantee of everything they believe sacred and good--whatever that may be."

Having recommended Loving yesterday, today I recommend reading Engel v. Vitale. Again, not a lot of legalese. http://www.agh-attorneys.com/4_engel_v_vitale.htm Justice Black's school prayer decision is clear and while you might not agree with the result, I think it's totally unfair to call this a knowingly illegitimate use of judicial power. Even those of you who find yourselves in agreement with Justice Stewart on the merits, and his opinion is also well written and, I think, reflective of a view of the Constitution that is as deeply held as that of Black and Justice Douglas, might want to take a deep breath before you want to throw around charges of bad faith.

Jesurgislac, while I think an Establishment Cluase attack on a state statute limiting abortion might be an interesting argument, this is not what the legal shooting is about.

The right set forth in the Constitution is to liberty. The question is whether and to what extent privacy is subsumed within liberty.

Charley: The right set forth in the Constitution is to liberty. The question is whether and to what extent privacy is subsumed within liberty.

Thanks for the clarification.

The Constitution doesn't grant rights to people, it restricts the behavior of government. Unless of course you're interpreting the Preamble's mention of liberty as an enumerated right, in which case I'm going to have to throw out the question: are only those things specifically mentioned in the Constitution protected as rights?

Oh yes: And as far as I can see, "activist judge" is codeword for "judge who interprets the law in a way I don't agree with".

This business of putting words in the mouths of others smacks of dishonest debating. Ask the question, if you don't know.

And so we get Roe v. Wade. Northerners and west-coasters think that there should be a federal right to abortion...

That is almost precisely wrong: most "Northerners and west-coasters" (at least those of my acquaintance, and polling data suggests the vast majority of this group concur) believe that it is not the proper province of the federal government to declare it illegal. It's a subtle distinction, but given that her entire post turns on essentially this distinction I think it seriously undermines her point.

The Constitution doesn't grant rights to people, it restricts the behavior of government.

So that's where I've been going wrong--all this time I should've been protesting Ashcroft's assault on the Bill of Restrictions.

This is demonstrably untrue, and a false dichotomy. The Constitution both grants rights and restricts the behavior of government.

I'm going to have to throw out the question: are only those things specifically mentioned in the Constitution protected as rights?

Funny you should ask:

Amendment IX

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

For the soi-disant "strict constructionists" here, I have two and a half words: Gore v. Bush.

For the soi-disant "strict constructionists" here who don't know what I mean by that, please check the 12th Amendment.

I will also second Catsy's citation of the 9th Amendment. The notion that rights which are not specifically enumerated do not, therefore, exist, is totalitarian thinking.

Sebastian: I think Galt's essay attacks a position that very few people hold. Many people I know don't particularly have views about the Constitution, other than that it's generally good. Those who do -- who have enough of an idea of what it contains to have a particular view of it -- just don't think that it's "a guarantee of everything they believe sacred and good--whatever that may be." I mean, no one I have ever met thinks this. This may be because I hang out in atypical circles, but I also can't help entertaining the possibility that Galt is just attacking a straw man.

I mean: to discuss the question whether the Constitution does or does not forbid nativity scenes in public schools as though it's simply, obviously a question of whether the term 'nativity scene' can be found in the Constitution, and if not, it's obviously just people reading stuff in, without so much as bringing up the question whether putting one in a public school does or does not constitute an establishment of religion, or even entertaining the thought that those who wrote the decisions banning such displays thought that it did -- that is, in my view, either intellectually dishonest or so ill-informed as not to be worth taking seriously.

Also, if Galt is going to bring up the Boston busing crisis, which was sort of the backdrop to my high school years, it's worth getting the history right. This was not a case in which liberals just decided to use the judiciary as opposed to the legislative branch. It was exactly the sort of case for which, I would have thought, Constitutions were written: namely, a case in which a majority was bent on denying the rights of a minority, and in which attempts to change their mind through the normal political process had failed.

Whites were a majority in Boston, and blacks were a minority. Whites, and more particularly people from neighborhoods like South Boston and Charlestown, had a lock on citywide political offices, and in particular on the School Committee. They used that lock to keep the schools de facto segregated, both by drawing the school district maps that way and also by keeping blacks from moving into white neighborhoods. (It was a very big deal in Boston when the public housing authority stopped giving whites preference for housing in certain neighborhoods, and when the first black families moved in.) They also used the School Committee to ensure completely disproportionate spending on white schools. This left the city's black population with really, really horrible schools. Really horrible schools, which were systematically starved of resources.

Bostonians' first thought was to go through the legislative process. The state, if memory serves, passed a bill prohibiting de facto segregation. The Boston School board ignored it. Proposals were brought before the School Board and (I believe) the City Council, and were blocked. I think alternate candidates were run, and defeated. Certainly a lot of behind-the-scenes efforts were made, and got nowhere. This was, of course, because a majority did not want to adopt those proposals; but what it was that they did not want was: to grant a minority rights which are, I think, guaranteed under the State Constitution, and which, moreover, had supposedly been guaranteed both by Brown and by federal and state legislation.

It was only after about a decade of unsuccessful efforts to desegregate the schools without involving the judiciary that the judge stepped in; and if there were ever a case in which a judge could fairly presume that an elected body would act to obstruct attempts to grant people their rights, this was it. School desegregation in Boston was absolutely horrible, but it is not at all obvious to me what the alternative was, other than allowing black kids to continue to fester in urine-soaked classrooms while encouraging white neighborhoods to believe that they could deny those kids their rights forever.

Amen, Hilzoy - the essay is quite typical of Galt's style: "Most people believe [this preposterous strawman that I want to argue against rather than the thing that most liberals actually believe]. I on the other hand, have sliced the Gordian knot, have grappled with the true questions, and from this complex intellectual donnybrook I have wrested the truth, which is [whatever run-of-the-mill conservatarian talking points she has done this dance to dress up all pretty]."

The courts are one of the primary countermajoritarian mechanisms installed in the Constitution (equal representation for all states in the Senate regardless of population is another). Slarti is right - the Constitution restricts the categories of laws that can be enacted. Galt seems to argue that the construction of these limits lies best with the very people writing the laws - the fox guarding the henhouse, as it were.

Balance of power, folks. That's the idea.

The Warren Court may be the most unfairly maligned group of political leaders in the U.S. today. This country would be unrecognizable without the Warren Court. It's not just Brown v. Board of Ed. Until the Warren Court, the First Amendment was not strictly enforced. (Brandenburg v. Ohio, N.Y. Times v. Sullivan, The Pentagon Papers Case.) Until the Warren Court, there was no right for a poor person to have appointed counsel in a felony trial. Until the Warren Court, much of the bill of rights did not apply to the states. I could go on.

They did occasionally go further than judges should go. I think Griswold was correctly decided, but Roe was not. I have my doubts about Miranda v. Arizona. But so has this court gone too far & made questionable decisions--they've usually been at the expense of individual rights. So did the Burger Court. So did the post-new Deal Court. So did the court that gave us Lochner and Hamer v. Dagenhart, systemically tried to destroy both state and economic regulation of government on an absurd interpretation of the constitutional text, but whose response to the government sentencing people to prison for 10-20 years for writing pamphlets opposing World War II was a great big yawn. So did the post-civil war court that gutted the Fourteenth Amendment in Plessy & the Slaughterhouse cases. So did the Dredd Scott Court. And God knows, Earl Warren had nothing on Justice Marshall in the judicial activism department.

And finally, as to the argument that race requires "extraoardinary measures": forbidding segregation is the most plausible reading of the 14th amendment's equal protection clause--as forbidding school prayer is the most plausible reading of the Establishment clause. They're only extraordinary if you want the Constitution to be a dead letter.

And this line--this line:

"segregation was everywhere a case of judges imposing an ideal on an unpopular minority: southern whites in the original cases"

give me a f***ing break.

"A democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49."
....Jefferson, via Jane Galt (insert ad hominem attack here)

As I said previously, I don't see that big a problem with SCOTUS. It is political, part of the political process, period. Both sides seem to inflate its perceived and actual power way beyond what is truly there.

The people have recourse. Amendments are very easy to pass, when there is a clear consensus, as in repealing Prohibition or granting 18-yr-olds the vote. When a plurality has a position with inadequate intensity, as in Flag-burning or FMA, amendments are impossible to pass. When an emotional issue evenly splits the nation, you got big problems, and I would contend a Supreme Court decision is no more or less important than a change in party control of Congress or the Presidency.

There seems to some sort of fantasy on both right and left that the Supreme Court can thwart the will of a clear majority. If 80% of the country really wants something, the Courts and law ain't gonna stop it. If you get upset that the Courts step in on close decisions, see Jefferson above. Close decisions should probably remained unsettled, unresolved, and contentious, and I don't see any SCOTUS decision doing much more than stalling and keeping debate open.

Oh. And Randy Barnett of the Volokh Conspiracy has done immense work on the 9th amendment, has a broad and libertarian interpretation of it, with disquieting implications for all ideologies, and has engaged in Web-Wide conversations on the 9th, with Lawrence Lessig for instance. The articles are too numerous to cite, but are required reading.

...I'm neither a historian nor a legal scholar.

Obviously not, since Brown was primarily about equal protection, not judicially-discovered constitutional rights (there was a companion case in which a right was found, but when people talk about Brown, they're typically talking about the Equal Protection cases).

There's doubtlessly a good argument to make re: Brown and activism, but her version ain't it.

"That is almost precisely wrong: most "Northerners and west-coasters" (at least those of my acquaintance, and polling data suggests the vast majority of this group concur) believe that it is not the proper province of the federal government to declare it illegal. It's a subtle distinction, but given that her entire post turns on essentially this distinction I think it seriously undermines her point."

I have to disagree very strongly here. That may or may not be where popular support for Roe comes from in 2004. Frankly I doubt it. But it definitely was not how Roe was talked about in 1973. Furthermore, what does the federal government declaring abortion illegal have to do with anything? Roe struck down the laws of almost every STATE in the United States.

You're right about Marshall being even worse than Warren. But both were perfectly willing to repeatedly ignore the Constitution if it got in the way of what they wanted so I don't think the distinction helps to argue against judicial activism at all.

"Galt seems to argue that the construction of these limits lies best with the very people writing the laws - the fox guarding the henhouse, as it were."

Where does she argue this? She argues that protection of rights that appear in the Constitution--sometimes known as Constitutional rights is the province of everyone in government, including the courts. She argues that there are important, and even very important rights, that are not protected by the Constitution. Those rights need to be vindicated by the legislative branch, or they need to be added via amendment to the Constitution so that they become Constitutional rights.

"as forbidding school prayer is the most plausible reading of the Establishment clause."

Hardly. The most plausible reading of the establishment clause is that the federal government can't establish a single state religious faction. Oddly enough, that is exactly how it was interpreted for more than one hundred years. But while we are talking about the text, which clause has the plausible reading which leads to different rules for abortions at before three months (I missed the the three month clause?) between three and six months (I might have missed the 3-6 month clause) and after six months (I'm pretty sure I missed that clause)? For that matter, which clause has the most plausible reading which tells us that married people having access to contraceptives is a Constitutional right. And then, how do you get from that ruling which emphasizes to the point of ridiculousness that it is grounded on the specialness of the marriage relationaship to a ruling almost without comment extending that allegedly-found-in-the-Constitution right to non-married people. You find it because it is an important right (and it is) and because the judges in question desired that it be protected by the Constitution. Not because it actually is in the Constitution. This is especially obvious in the contraceptive cases as can be seen by the cover-their-butts rationale about the importance of marriage in the right to privacy and their subsequent action ignoring that alleged intimate tie between marriage and the Constitution when extending it. And that is what defines judicial activism--trying to vindicate rights which you think are important as Constitutional rights even though they are not found in the Constitution. And that is bad because the Constitution is supposed to provide a limited framework for defining the interactions between the branches of government not an unlimited check on majoritarian power.

"The courts are one of the primary countermajoritarian mechanisms installed in the Constitution (equal representation for all states in the Senate regardless of population is another)."

I'm going to suggest that this is one of the largest and most damaging misunderstandings about the Court's role. It is not a countermajoritarian mechanism at all. It is a super-majoritarian mechanism. It protects the decisions of the super-majority as placed into the Constitution from later decisions of smaller majorities until those decisions gain enough support to change the Constitution through the amendment process. The courts are supposed to be primary agents for STASIS in the laws of the federal government, while the legislative branch is supposed to be the primary agent for change. That is not to say that the judges can never cause change. If the modern legislature violates the precepts of the historical super-majority as stated in the Constitution judges are empowered to overrule that violation. That is not counter-majoritarian. That is anti-current-majority in protection of an older super-majority.

The judicial branch definitely does not have a generalized obligation to act as a 'counter-majoritarian influence'.

In many of these cases I am perfectly happy with the outcome. I think contraception should be widely available for instance. But it isn't a Constitutional right. And if you want it to be, the amendment process is available. I would venture that you could probably have such an amendment pass if you really thought it was that important. Or do you not think that contraception is important enough to put into the Constitution by amendment, only by judicial rule?

I think Roe was wrong, but Griswold was right. I believe the 9th amendment means something different from the 10th amendment, and you interpret in a way that makes it redundant and meaningless and is not supported by the text itself, Sebastian.

You read the words "race only" into the 14th amendment. They are nowhere in the text. You misquote the First Amendment. It does not say "Congress shall not establish an official religion." It say "Congress shall make no law respecting the establishment of a religion."

Establish one religious faction at the expense of another? School prayer does. Christians are a faction as much as Jews are--they used to recite the Our Father, which doesn't mention Jesus, but you have got to be kidding me if you think it's purely ecumenical and religiously neutral. Believers are a faction as much as atheists are. As Madison wrote, a faction can be large or small. A faction can even be a large majority. As white people were for a long time.

I also support a broad reading of the post Civil War amendments in particular, because until they passed our government was illegitimate in a very serious and fundamental way.

And that is what defines judicial activism--trying to vindicate rights which you think are important as Constitutional rights even though they are not found in the Constitution. And that is bad because the Constitution is supposed to provide a limited framework for defining the interactions between the branches of government not an unlimited check on majoritarian power.
...
I think contraception should be widely available for instance. But it isn't a Constitutional right. And if you want it to be, the amendment process is available.

In other words, you are construing the enumeration in the Constitution of certain rights to deny or disparage others retained by the people.

Judicial activism, indeed.

"I'm going to suggest that this is one of the largest and most damaging misunderstandings about the Court's role. It is not a countermajoritarian mechanism at all. It is a super-majoritarian mechanism. It protects the decisions of the super-majority as placed into the Constitution from later decisions of smaller majorities until those decisions gain enough support to change the Constitution through the amendment process"

Which will often put it at odds with the majority--even the very majority that ratified the Constitution. Even the very people that WROTE the Constitution sometimes; the sedition act comes to mind.

I'm sure many people who voted for the equal protection clause would never wanted it to include women, gay people, immigrants, didn't really want it to include black people all the way. But they didn't write "nor deny to any person within its jurisdiction the equal protection of the laws. (P.S. Some persons are more equal than others. Offer void if it would interfere with the divine wish to separate the races, or give rights to a group we find to be inferior or icky.)" They just wrote "nor deny to any person within its jurisdiction the equal protection of the laws." Maybe some of them would be unhappy or surprised to see those words actually enforced in some cases, but too damn bad--they chose to write a broad, sweeping statement of liberty knowing that it would be interpreted by judges. They wanted to write a virtuous, noble sounding Constitution. I'm not upset about judges holding them to their words.

Do you have any idea how vague the Constitution is compared to any statute? Statutes are 10x, 50x, 100x as specific as the Constitution, and yet there are still gaps and confusions. Of course there are disagreements about how to interpret the Constitution itself. Of course there are. There were meant to be. "We must never forget it is a Constitution we are expounding." It doesn't necessarily mean the other side is acting in bad faith--ocasionally they are, but usually not.(Laurence Tribe does his best every year to convince his classes that even the Bush v. Gore majority was not acting in bad faith. I'm not sure I buy that one, but he would know more about it than me.)

I hate arguing you about this, because you have this very sweeping and total contempt for the other side. It's not justified and it's not mature. People get annoyed at me, probably rightly so, for imputing bad faith to individual politicians and posters, but it's somehow okay to impute bad faith to every liberal judge and law professor over the last 50 years.

"I hate arguing you about this, because you have this very sweeping and total contempt for the other side. It's not justified and it's not mature. People get annoyed at me, probably rightly so, for imputing bad faith to individual politicians and posters, but it's somehow okay to impute bad faith to every liberal judge and law professor over the last 50 years."

What I ask is exactly the opposite of 'sweeping'. I am very specific. How can I fail to be suspicious about the judicial philosophy of jurists who think that that the Constitution mandates a highly specific set of rules for abortion in weeks 1,2,3,4,5,6,7,8,9,10, and 11 but a different set of rules in weeks 12,13,14,15,16,17,18,19,20,21,22,and 23 and a different set of rules in weeks 24,25,26,27,28,29,30,31, etc.? The Constitution does no such thing. And having a judicial philosophy which allows you to create such specificity when it is clearly absent is not indicative of respect for the Constitution as a legal document or legislatures as legal entities.

How can I fail to be suspicious when a court takes great pains to discover a Constitutional right to contraception which they claim repeatedly is deeply grounded in the privacy of the marriage relationship only to turn around 7 years later and extend the right to individuals. That is barely enough time for a new case to get to the Supreme Court. Clearly the right wasn't so grounded in the marriage relationship. But do they re-examine that? Hardly. Cite Griswold, extend beyond marriage, pretend that the alleged rationale of the case was not all about the privacy of the marriage relationship, move on with your newly created 'Constitutional' rights.

How can I not be suspicious when the two of the greatest heros of liberal jurisprudence come up with the ridiculous 'interpretation' of "cruel and unusual punishment" to find that the Constitution categorically disallows the death penalty by implication even though it EXPLICITLY defines a method by which trials with the death penalty are to be held?

I am not contemptous, I am aghast. I am horrified that we let the Supreme Court run wild. I am horrified that we are at a stage where anyone could even suspect that the most important presidential power involves judicial appointments. It isn't supposed to be like that. It isn't good for things to be like that.

Re: the first amendment, you are interpreting the word establish as being the exact equivalent of 'do anything to allow support for religion'. That is not the interpretation which held for a century and a half, it is not the most obvious interpretation of the word 'establish'. That interpretation is directly contradicted by the next half of the clause, which you omit. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" reads very differently than "Congress shall make no law respecting an establishment of religion."

I'm not just contemptous of liberal judges, conservative activist judges have done awful things too. You have adequately cited them. But their attacks on the Constitutional system are not currently law. They have been overruled. Not so liberal judicial activism.

And I certainly am not saying that everything done by a generally activist judge is beyond the proper exercise of power. The Burger court made a number of good decisions. But they also chose to go far beyond their legitimate authorization on a regular basis.

I have to disagree very strongly here. That may or may not be where popular support for Roe comes from in 2004.

Which, given that it's 2004, is what's relevant to Jane Galt's point about "short-circuiting the electoral process", unless you're planning on redoing the elections of the 1970s.

Furthermore, what does the federal government declaring abortion illegal have to do with anything? Roe struck down the laws of almost every STATE in the United States.

I was addressing Jane Galt's point about federalism and what liberals supposedly believe. It's certainly true, I think, that many people believe the wider version -- that no government, state or federal, has the right to outlaw abortion -- but a) I wasn't talking about that, and b) I think the distinction still remains.* It's analogous in my mind to the difference between legal-illegal (nice, clear bright line) and that nebulous interzone "decriminalized".

* Also c) I'm not especially convinced of that myself; like Katherine (though probably for different reasons) I find the reasoning given in Roe to be unconvincing although I more or less approve of the outcome.

You're right about Marshall being even worse than Warren. But both were perfectly willing to repeatedly ignore the Constitution if it got in the way of what they wanted so I don't think the distinction helps to argue against judicial activism at all.

No I'm not: I didn't say anything about Marshall. That was Katherine (although I happen to agree here as well). Please keep your citations straight, especially if you're not going to alter the font of your quotations.

I do not understand why so many conservatives are seemingly unable to acknowledge that the point of the 14th amendment is to protect persons -- actual individual human beings -- from the oppressions of the state.

I don't expect them to agree with me that the word "liberty" in the 14th amendment means that the state can't infringe on my fundamental rights. Is it too much to ask, though, that my belief that this is so not be called bad faith, or beyond all reason, or any of the other derisive terms used in this debate? I mean, I find that I can usually restrain myself from disparaging all manner of beliefs of people I meet, some quite outlandish. (I do not claim a perfect record in this regard, of course).

And to those who like to say that for the first 100 years (or maybe 75) the Constitution was thought to mean X, I'd ask whether the entire Reformation was therefore completely illegitimate, coming so many centuries after so many of the questions about the nature of the Eucharist, etc, had been "settled." Fact is, we each get to encounter the Bible, the Constitution, the Parliament of Fowls, old episodes of Star Trek, Sgt. Pepper's Lonely Hearts Club Band, The Wild Bunch, etc etc on our own and interpret them with our own abilities and all the help our context allows. Rail if you want, but this is the human condition.

I am very specific... And having a judicial philosophy which allows you to create such specificity when it is clearly absent is not indicative of respect for the Constitution as a legal document or legislatures as legal entities.

The problem is that, from my perspective, your specificity is arbitrariness by another name. You talk about the meaning of the Constitution as if it's fixed, immutable and somehow intrinsic to the text of the Constitution itself. It's not. I'm mindful of our mutual dislike of post-modernism and deconstructionism to the point where nothing has any meaning whatsoever; I'm not the slightest bit sympathetic, however, to the claim that the meaning of the text of the Constitution is somehow static when the world itself is so dynamic.

To put it another way: the proper people to rail against aren't the "activist judges", they're the Framers of the Constitution themselves (and subsequent amenders) for writing such a damn ambiguous, incomplete document in the first place, a document that necessitates continued interpretation. Katherine's point about the specificity of Constitution v. statutes is particularly applicable here, especially as witnessed by the hundreds of volumes of SCOTUS decisions necessary to meaningfully "interpret" the Constitution. Outside of mathematical circles, though -- where rigorous thought is the be-all-and-end-all of our discipline and where the kind of slipshod hackassery of the Constitution would be laughed out of court -- I haven't heard anyone try to raise this point.

Another quick post on this before I go: does anyone know how many times, or how often, a Supreme Court Justice has rendered a decision that is contrary to their personal politics? And does anyone know how this number or frequency has changed over the past 200 years?

One more thing:

There is almost always a substantive argument underneath a procedural argument. And that's not a bad thing.

Sebastian thinks the best reason to have a written Constitution and judicial review is to slow down change as much as possible, and keep the country from getting too far away from what it was in 1789. (correct me if I'm wrong here but I'm basing it on what you wrote.) It's a small-c conservative idea.

I think protecting individual liberty, justice and the rule of law, preventing any person or any branch or any faction from getting absolute power, and establishing a democratic government are the best reasons to have a Constitution and judicial review. It's a liberal idea.

Both of us have also convinced ourselves the founders agreed with us--convinced ourselves of this seriously and sincerely. But neither of us are scholars of colonial history, and I don't think it's a coincidence that our views of what the founders thought corresponds to what we think.

But neither of us are scholars of colonial history, and I don't think it's a coincidence that our views of what the founders thought corresponds to what we think.

Hence my question above. And on that note, I'm really going now.

The most plausible reading of the establishment clause is that the federal government can't establish a single state religious faction.

This is absurd, Sebastian. Are you seriously contending that this only forbids the establishment of, say, Roman Catholicism, as a state religion, but does not prevent the government from coercing people into practicing Christianity? And that is of course what school prayer did when I was growing up, and would do again if allowed. And even if that were strictly policed, which it wouldn't be, it would still force the practice of religion.

This essay is a good example of why I no longer read Jane Galt. Her ideology too often produces this sort of foolishness. Excellent essay? Are you kidding? Does she really think the desegregation decisions were not the "stuff of judicial legend?" Get her a time machine and have her go be a Federal judge in the post-Brown south. There was heroism aplenty. Does she think desegregation hasn't accomplished much? While she's roaming around mid-1950's Alabama have her drop in at some black schools.

Katherine has addressed much of this far better than I, including her 10:57 request for a break, which I echo.

as for current conservative judicial activism: see the cases on competency of council, the cases dishonestly interpreting text and precedent to weaken the fourth amendment horribly, the cases reducing the Congressional enforcement clause of the fourteenth amendment to almost nothing, Scalia's efforts to make immigrants & gay people into unpersons & to destroy the only pathetic protections that poor people have in the judicial system, the cases that not only stop requiring school desegregation but actually forbid it, the ridiculously outcome-driven cases on what powers are intrinsically local and what powers are not, the cases on standing, every case that dishonestly rules "on the facts of this case" that provide lower courts and Congress with a broad license to violate the due process clause, and Thomas's advocating on behalf of unlimited executive power during wartime in Hamdi. And, as ever, Bush v. Gore.

And you guys are just getting warmed up. Bush will probably fill three seats, maybe four. His favorite two justices are Scalia and Thomas.

"Another quick post on this before I go: does anyone know how many times, or how often, a Supreme Court Justice has rendered a decision that is contrary to their personal politics? And does anyone know how this number or frequency has changed over the past 200 years?"

It's very hard to know, because we can't see into their heads, and decisions have complex political effects. Take gay marriage and abortion, the issues of the day. I am personally supportive of gay marriage. I also strongly believe that classifications based on sexual orientation should get intermediate scrutiny under the equal protection clause, and I believe they fail. I don't think it's even a hard case. So most people would accuse me of judicial activism and legislating from the bench if I wrote that opinion. But actually, if I were on the Supreme Court, and the case came before me, the real temptation of politics would be to not give my honest interpretation of the Constitution because I would be terrified of helping to produce the backlash that led to the passage of the federal marriage amendment.

Similarly for abortion--I think first trimester abortion should be legal, but I think Roe v. Wade is wrongly decided. But say I am also soemwhat ambivalent about my support for legal abortion, that I think that Roe v. Wade's practical effects are exaggerated, and that I think it has done tremendous harm to the Democratic party and would love to take away the GOP's favorite wedge issue. Are my motives truly pure, or as impure as they could possibly be? You'd have to see inside my head to know.

Or take the medical marijuana case. If Scalia finds for the plaintiffs, hippies will get to smoke more pot, which he thinks is a bad thing. But maybe he can use this case to narrow the commerce clause and strike down all sorts of labor and environmental laws, which he thinks is a wonderful thing. So which decision is contrary to his political opinions?

"How can I not be suspicious when the two of the greatest heros of liberal jurisprudence come up with the ridiculous 'interpretation' of "cruel and unusual punishment" to find that the Constitution categorically disallows the death penalty by implication even though it EXPLICITLY defines a method by which trials with the death penalty are to be held? "

Furman is probably wrong, but it's not ridiculous. The model penal code specifies special procedures for capital cases, but takes no position on whether the death penalty should ever be allowed.

We allowed all sorts of punishments in the early 1800s that are now considered cruel and unusual. "Cruel", by its nature, is subjective; "unusual," by its nature seems like it would inevitably change with the times. Yet those were the words they chose.

It's pretty hard to see what affirmative power in Article 1 would allow Congress to establish an official religion. Does the establishment clause show that they obviously had such an affirmative power?

"That interpretation is directly contradicted by the next half of the clause, which you omit. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" reads very differently than "Congress shall make no law respecting an establishment of religion."

No it doesn't, unless you believe that telling schools they cannot make kids recite the Lord's prayer is a violation of free exercise.

Please tell me you do not believe this. (Though, if you do, you might save yourself some annoyance, because I will probably be much less inclined to bother arguing with you about Constitutional law again.)

I believe in a stronger establishment clause AND a stronger free exercise clause than Scalia. There are some unusual cases where the two clauses are contradictory, but in most cases they are two sides of the same coin. Read some European history, or Thomas Jefferson, or better still James Madison for God's sake. Memorial and Remonstrance.

Sebastian thinks the best reason to have a written Constitution and judicial review is to slow down change as much as possible, and keep the country from getting too far away from what it was in 1789. (correct me if I'm wrong here but I'm basing it on what you wrote.) It's a small-c conservative idea.

I think protecting individual liberty, justice and the rule of law, preventing any person or any branch or any faction from getting absolute power, and establishing a democratic government are the best reasons to have a Constitution and judicial review. It's a liberal idea.

Hmm, I think you are essentially right about what I'm saying about the Constitution and judicial review, but I believe that it is a huge part of protecting individual liberty. Allowing the judicial branch to become unmoored from the Constitution allows interpretations of liberty to become fluid. That which is fluid does not always have to run the way you like. I would rather have solidified protections which expand slowly through amendments than fluid protections which expand quickly but because they are not moored beyond the whim of 5 judges can retreat just as quickly. And once we have accepted the fluid model of judicial interpretation, when the liberty interpretations contract we have undermined even the obvious protections.

Oh, but I think this isn't accurate: "and keep the country from getting too far away from what it was in 1789." That is true only in the very limited areas proscribed by the Constitution. There are huge areas which are ripe for change any time the legislative branch feels like it. And there are unlimited areas of change available through the amendment process. One of the key reasons I dislike the idea that fundamental liberties grow and grow whenever 5 judges discern a change in our bedrock principles is that it takes the duty of formalizing our bedrock principles through the amendment process away from the proper people--the people of the United States. What do you see as the purpose for an amendment process if all conceivable concepts of fundamental liberties can be disposed of through the courts?

(also note, as a matter of sentence diagramming, that the free exercise clause has its very own -ing verb. "Congress shall make no law respecting prohibiting the free exercise of religion" is pretty terrible grammar.)

RE: Free exercise. Does telling a valedictory speaker that she cannot speak a prayer implicate the free exercise clause?

A valedictory speaker? Yeah, that implicates free exercise. So do the cases about using school resources for religious clubs, and some of the federal lands cases about Indian holy sites. Those implicate both. But the ordinary school prayer and creationism cases don't.

Fair enough about 1789.

But:
" What do you see as the purpose for an amendment process if all conceivable concepts of fundamental liberties can be disposed of through the courts? "

I don't think this at all. I have told you so about 100 times. I think Roe v. Wade should be reversed. I think Miranda v. Arizona should maybe be reversed, or at least taken back to its original holding as a stopgap remedy with states able to impose other remedies to ensure that confessions were not coerced. I don't think there is a Constitutional prohibition on closing the borders and ending the political asylum program. I am writing a paper on whether extraordinary rendition is illegal under U.S. law and whether the courts have jurisdiction to enforce the laws against it, and you know what? I'm not sure of the answer. (The tentative conclusion is that it is illegal but the courts cannot enforce the laws against it.) Do you think I like those results?

This, this utter refusal to accept that I take the text of the Constitution seriously and making a good faith attempt to interpret it, is what drives me crazy. I said the overall purpose of the Constitution was to protect liberty, but I didn't say that therefore the ruling that best protects liberty X is always right--the text is not going to really protect liberty unless you take the text itself seriously, and respect your precedents, and all the other rules of good judging. Which the Warren Court sometimes didn't do in their zeal to protect individual rights--but there were other, more numerous cases where they not only protected individual rights, but also took the Constitutional text itself seriously for the first time ever.

WOAH NELLY!

First, as anyone with passing legal training should know, Roe v. Wade is virtually dead letter. Try Casey instead. Key differences -- Casey abandons the strict trimester system and is based much more on the historic interpretations of the Liberty interest articulated in the 5th and incorporated against the states in the 14h amendment.

second, why do so many strict constructionists seem to forget the years 1861-1865? There are profound constitutional arguments to be made that the 14th amendment constitutes a complete reshaping of the federal government's power over state's rights. and ya know, there happens to be historical support for that view. It can be fairly argued that the appropriate Framers, for purposes of determining Framers' Intent, are the authors of the 14th amendment, at least for purposes of determining federal power over state law.

ah, but race is UNIQUE, cries Ms. Galt. then why, pray tell, do we have a separate amendment dealing with race: the 13th? [crickets chirp in the silence.]

Ms. Galt, you are aware, aren't you, that women used to be "property" in ways different from slaves but just as demeaning? they couldn't hold title to real property, they were not allowed to vote, they weren't allowed to obtain professional licenses etc.

so RACE and SEX are unique! hmm. aren't we now agreeing that anytime a distinct minority can claim long-term persecution in obtaining civil rights available to everyone else, then the protections of the 14th amendment apply? Isn't the case that the Equal Protection and Due Process Clause were RIGHTLY applied in Loving? Isn't the case that the recent refusal of a certain southern state to pass a law invalidating an old law against miscegenation provides strong evidence that virulent prejudice still exists against certain minority groups?

and why would anyone choose to be gay in this culture? isn't not like picking Yankees over Red Sox; we can agree, can't we, that tremendous homophobia still exists? And if SEX is a protected category like RACE, doesn't the logic of Loving apply precisely to homosexual civil unions?

oh no, says mr. holsclaw -- gays MUST seek legislative approval. Tell you what, Sebastian, how much success is the current California legislature having in passing a civil union bill? Still stalled in committee? What is the Gov's position?

what, precisely, prohibits application of the 14th amendment to homosexual marriage? fears of another culture war? we're in it already.

Francis

I'm thrilled to hear it. So are you arguing that judicial activism just isn't a big deal?

What mechanism do you use to separate unprotected and unindentified fundamental liberties from protected but unidentified fundamental liberties? For example, you say you agree with Griswold, but it is deeply grounded in a special marriage relationship in order to find a Constitutional right to unfettered access to contraceptive devices. Even assuming that the special marriage principle is a fundamental right which requires unfettered access to contraception, how do you then get to extend that to everyone? In actual fact the court cites Griswold, hand-waves about privacy, and then says that privacy belongs to everyone and pretends that the marriage justifications it pretzled around seven years before weren't really that important after all--which isn't surprising because they almost certainly weren't important for anything other than hiding the fact that the Court was creating a right out thin air.

"What do you see as the purpose for an amendment process if all conceivable concepts of fundamental liberties can be disposed of through the courts?"

Changing the way Presidents and Senators are selected. Giving presidential electors to the District of Columbia. Authorizing a federal income tax. Adding term limits. Limiting the ability to sue states in federal courts. That enough of a reason to have an amendment clause?

It's only really been used once to deal with fundamental liberties, and that was to remake the compact amongst people, states, and federal government, such that people had a federal right to be free of undue encroachment, or unequal protection, by states. OK, maybe the Fifteenth Amendment makes it twice. Extending the vote to women, I would say was another recasting, because before that such things were based on state law.

Sebastian, I share your concern that a system where we interpret broad statements is subject to changes over time. Maybe Wickard is going to be overruled this term. Maybe not. Maybe Roe will be overturned in the next few years. Maybe not.

I'm working today on two pretty bizarre little constitutional issues. Say you have a situation where you need to have a case-within-a-case. (The details are boring -- trust me on that). And say that while the dominant case is jury triable, the subordinate case isn't. Is there a Seventh Amendment right to a jury trial on all issues in the case-within-a-case? OK, now say you have a situation where Congress passed a law (a rider to an appropriations bill) that alters (by amending a section of the US Code) the remedies available against foreign sovereigns in a particular class of cases, but in the amendment gave the President the power to waive the amendment. Say further that the President says when the bill is presented that the bill is constitutionally defective, but for the waiver, and exercises the waiver immediately after signing the bill. Now say that one party contends that the amendment to the statute was effective afterall, because the waiver is a violation of the separation of powers.

You can't possibly write a constitution that answers questions like this. You can't even write one that allows you to tell whether Wickard is correct, much less Griswold, Lawrence, or Roe.

"This, this utter refusal to accept that I take the text of the Constitution seriously and making a good faith attempt to interpret it, is what drives me crazy."

I think it is more your comments that might make people think this. I don't think anyone really wants to think this about you. But the way you interpret it is questionable.

I can't even fathom your logic on how you interpret:

"Congress shall make no law respecting the establishment of a religion."

You really had to have made up some definition in your own mind. You really have to twist it to get it to say what you want. And it seems that there are far more people in the U.S. who don't think like you than do think like you. If I were you I wouldn't look outward for the answers as to why people think what they do. I would look inward.

"Ms. Galt, you are aware, aren't you, that women used to be "property" in ways different from slaves but just as demeaning? they couldn't hold title to real property, they were not allowed to vote, they weren't allowed to obtain professional licenses etc."

While we are being snarky, you might notice a constitutional amendment giving women the right to vote. That darn amendment process.

"Tell you what, Sebastian, how much success is the current California legislature having in passing a civil union bill? Still stalled in committee? What is the Gov's position?"

And here we have dramatic illustration about the difference between respecting the grinding of the legislative process and just wanting to have your way. Of course you also ignore the fact that on Septemeber 30, 2004 he signed the domestic partnerships bill so I'm not sure your point even makes sense in this context.

wwc: Please back up your statements with a modicum of knowledge, or it makes it look like Katherine outclasses you at a fundamental level. I would hate to assume that is, in fact, the case.

carp,

I think she knows what she wrote. Her frustration is a little of topic anyway...

Wwc, we try to be reasonable here. That tends to mean voicing the reasoning behind your objections. "I don't agree with you" doesn't help anyone understand why you don't agree and doesn't help anyone get to a better understanding of anything other than your personal feelings. Real debating can be fun, embrace it.

If you really want a situation where judicial activism is frowned upon, I recommend that you move over here to the Land of Wa. (Of course, if you want to continue to practice law, it might be difficult, as foreigners are kept out of the legal profession) The whole idea of judges acting in a way that protects minority rights is not even considered here. To see how this works in practice, refer to the timeline here
(it's a pdf file, if you can't read it, check out Timothy George's book _Pollution and the Struggle for Democracy in Postwar Japan_)

"What mechanism do you use to separate unprotected and unindentified fundamental liberties from protected but unidentified fundamental liberties?"

Fair question.

The short, oversimplified answer is:

The Ninth Amendment to the enumerated individual rights guarantees as the Necessary and Proper Clause is to the enumerated powers.

I will elaborate later with some examples; right now I have to go cook dinner.

The Ninth Amendment IS to the enumerated individual rights guarantees.

Oy. Why can't I type?

which isn't surprising because they almost certainly weren't important for anything other than hiding the fact that the Court was creating a right out thin air.

They were not creating a right out of thin air, they were recognizing a right that always existed. People have rights that are not enumerated in the Constitution. The Constitution says so. If the legislative branch enacts laws that infringe on those rights, and the executive branch enforces those laws, to whom are the people to turn for due process?

The answer, of course, is the judicial branch.

What Sebastian is doing here is advocating judicial activism. Those parts of the Constitution of the United States he opposes for ideological reasons, he ignores. He wishes to rewrite the Constitution on a whim to suit his purposes.

We, the people (not the states, nor the federal government), have rights that are not enumerated in the Constitution. It is up to the courts to protect those rights against those that would deny or disparage them.

Katherine:

"Establish one religious faction at the expense of another? School prayer does."

Every major religion supports prayer. So allowing one to pray doesn't mean you have to be a Christian. I went to a Jewish High School as a Christian and we prayed every day. With the logic going here, I suppose some people would be amazed that I am not Jewish today.

Katherine:

I hate arguing you about this, because you have this very sweeping and total contempt for the other side. It's not justified and it's not mature.

This seems an odd defense of her position. I can't help but think that she is the one with the contempt.

Hence, why I didn't feel a need to elaborate on her posts.


But, it's okay to tell kid's that they can't have a Bible club or that they can't pray?

I went to a Jewish High School as a Christian and we prayed every day.

Does someone wish to enlighten wwc as to the issues of public v. private schools and religion?

Or is it preferable to watch this slow-motion plane crash?

wwc,

Every major religion supports prayer.

Atheists don't, and what about minor religions?


So allowing one to pray doesn't mean you have to be a Christian.

There is a huge difference between allowing prayer and imposing it. May I yell?

"STUDENTS ARE ALLOWED TO PRAY IN SCHOOL"

I went to a Jewish High School as a Christian and we prayed every day. With the logic going here, I suppose some people would be amazed that I am not Jewish today.

So what? You went to a private religious school. Nobody is trying to force that kind of school to stop group prayer.

Sebastian,

You quote Jane Galt, as saying

We have the right to bear arms, freedom from unreasonable searches, and the various criminal justice rights to prevent the government from curtailing those [political and expressive] rights through the backdoor of intimidation.

Is this your idea of "excellent" thinking about the Constitution? That rights related to criminal justice exist to protect freedom of expression, rather than as a matter of assuring that criminal suspects are treated fairly?

wwc: the posting rules require civility. It's also more illuminating for the rest of us if you explain why you think someone is wrong, instead of just saying so.

ok, new rule for Francis -- don't post with a fever.

Sebastian, i apologize for sounding like a jerk.

Francis

there's a weird lack of thought about the idea that brand new rights which were manufactured thirty five years ago are somehow sacred, untouchable things

"Manufactured?" Exactly how long ago does right have to have been "manufactured" to be a "sacred untouchable thing?" Two hundred fifteen years? One hundred thirty-nine? Forty? What a moron.

wwc: Every major religion supports prayer.

Not to pile on, but this is near and dear to my heart. This, wwc, is the danger in refusing to think outside of one's fundamental assumptions and worldview. First of all, it's factually wrong: not every major religion involves prayer, nor even God/dess--let alone the Judeo-Christian-centric version of prayer under discussion here.

Second, and more importantly, it's completely beside the point. As someone else noted, your statement rests on the assumption that "minor" religions (by whose metric?) and atheists don't matter. One of the greatest dangers of Democracy is the tyranny of the majority; significant portions of the Bill of Rights--including the Establishment clause--exist to protect the minority from that.

Grow up as an atheist as I did, and I guarantee you that school prayer--and, for that matter, every mention of God in the compulsory recital of the Pledge of Allegiance--will feel a whole lot different.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

So we're in agreement, then?

Bernard: What a moron.

Errr... who?

Anarch: Bernard was quoting Galt, so I assume that's who he's referring to. I am, as always, open to correction, though :)

I'm not offended by what wcw wrote, I don't think it was out of bounds. I'm not going to respond though--there's some fundamental disconnect, and I don't know quite what it is.

calling people morons, on the other hand is not cool.

Here's what I mean about the Ninth Amendment:

you use the rest of the Constitution as your guide. I can't see what else you'd use. We no longer believe in a "common law" descended from "natural law." And there are big problems with using the judges' own moral beliefs, looking outside our borders, any other source you can think of.

The Ninth Amendment is a license to do what is necessary and proper to give substance and strength to the enumerated rights, instead of reading them narrowly and legalistically.

This is the same basic idea as Douglas' famous "emanation and penumbras", but that's a terrible way of putting it. That makes it sound hokey and new agey and made up, when it should be based on a serious analysis of the text's logic--but a very different sort of analysis than Scalia's sentence diagramming and comma placement and looking up words in 1789 dictionaries.

Example 1I'll begin with a clause that is perhaps nearer to conservatives' heart than liberals': "Nor shall private property be taken for public use, without just compensation."

Q: what about taking private property for private use? Do you have to compensate for that? Is it allowed at all?

As a matter of sentence diagramming: the issue is not addressed, so it should be allowed, and there's no guarantee of compensation. But it makes no sense at all to read the clause that way. What conceivable reason is there to require compensation to take away someone's house and build a park, but not to require compensation to take it away and give it to General Motors?

For that matter, what right does the government have to take away someone's property and just give it to someone else? It seems fundamentally illegitimate, fundamentally at odds with what our Constitution was designed to protect. And yet, what is there in the text to stop them? Only this clause, which does not say anything about taking property for private use, and this: "nor deny anyone of life, liberty, or property without due process of law". That just sounds like a purely procedural protection, though--you can take property away as long as you do it according to a law passed by legislature and signed by the governor, and allow a hearing on any factual dispute, and dot your I's and cross your T's. But if your legislature passes a law saying that "all those with the surname Hatfield must give away half their land to any resident of their municipality to all those with the surname McCoy"--who cares whether you get a hearing to prove whether your last name is really Hatfield or how large your estate is or whether there are any McCoys in your town? Your procedural rights are worthless if the legislature can just pass any old law it wants.

(Nevermind Bernard, I just read hilzoy's post. Calling people not on this blog morons is fine of course.)

Example 2
"Congress shall make no law abridging the freedom of speech, or of the press."

Can Congress restrict handwritten communications? The airwaves? Non-verbal communications, like photography and art and dancing? Can it say, sure you can write that book, but you can't ship it through the mail and no one's allowed to read it? Speaking and listening aren't the same thing, after all, and there's no constitutional right to a postal service. Can the government compel you to speak? Can they make you recite the pledge of Allegiance or a loyalty oath to the President, or else be expelled from school? The first amendment doesn't say anything about "freedom of silence" after all--silence is the opposite of speech. Or let's get sci-fi ish, imagine there's some way for the government to change your thoughts themselves--would that be legal?

No, no, no, no and no. Congress can't do any of these things, because we've read freedom of speech as protecting not the act of verbal communication, but a free debate, an exchange of ideas, freedom of the mind, freedom of conscience.

These are emanations and penumbras too.

Example 3

The United States follows Alan Dershowitz' advice and decides to set up a system of "torture warrants" for suspected terrorists. There are lots of procedural protections: it's based on a statute passed by Congress. A suspect is detained as a material witness or an enemy combatant. Law enforcement officials must show by clear and convincing evidence that a suspect has knowledge of terrorist activities, and show probable cause--actually, a preponderance of the evidence, that torturing this suspect will save lives. They must show this under oath, and give all exculpatory as well as incriminating evidence, and any evidence tampering or perjury will be punished with 10-20 years imprisonment. Testimony obtained under torture cannot be used to convict this terrorist of any crime, it will only be used to apprehend his associates. The warrant specifies what forms of torture are and are not permitted. And whatever other procedural protections you can think of--lawyers, a chance for the suspected terrorist to present a defense before being tortured, a system for compensation if it turns out he's innocent, whatever.

Is this constitutional?

The Eighth Amendment protects against "cruel and unusual punishment." But this isn't punishment. It's an effort to save other lives.

The Fifth Amendment says that no one may be
"compelled in any criminal case to be a witness against himself." But we will never use this information against this suspect, only others--and we don't even have to use it in court at all, we just want to stop the attacks from happening.

"Due process of law"? This is all the process you could possibly want. Even in this time of grave danger, he gets a hearing, a lawyer, a high burden of proof, an independent decision maker.

The Fourth Amendment? But this warrant is supported by more than probable cause, and not only do they swear under oath--there are really severe penalties for being anything other than completely candid with the judge.

A constitutional prohibition on torture in this circumstance would have to be justified either by substantive due process, or an emanation and penumbra from the search & seizure, self-incrimination, the cruel and unusual punishment clause, and due process clauses--especially cruel and unusual punishment.

Late to the fray again, but following up on Slarti:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

So we're in agreement, then?

It seems to me that, when questions of intrusions on rights that may fall within the realm of "others retained by the people", no particular branch is given provenance over others. In other words, the Judiciary has as much claim to authority as the Executive or Legislative branches on these questions. No?

BTW, and back to the original post. I must say that Megan (excuse me, Jane Galt) demonstrates a nearly total lack of understanding about point. Sorry for the snark.

Ack, s.b. about this point.

Example 5

Okay, I'll bite the bullet: the right to privacy.

One of the precursors to today's privacy cases was a case called Skinner v. Oklahoma. It was about compulsory sterilization of criminals who committed multiple "crimes of moral turpitude" (That does not mean pedophiles or rapists, necessarily; stealing chickens was a crime of moral turpitude). It was decided on equal protection grounds, but the entire key to the equal protection analysis was the finding that this law deprived people of:

"We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury."

Say there was no equal protection argument. Say the United States had a policy like China's: compulsory sterilization after the birth of one child. Constitutional?

I don't see a provision of the bill of rights that says otherwise--not if you don't believe in emanations, penumbras, or substantive due process.

The closest one is #4. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." But that is always read in conjunction with its second half--whether a search is "reasonable" depends on whether there is probable cause or a warrant, not whether it is reasonable to criminalize certain behavior or conduct such a search at all. Anyway, you can come up with circumstances where it is theoretically responsible to prevent overpopulation.

And yet--is there any government seizure of your home and your body worse than this? Any greater violation of liberty? How much more of an invasion is this than searching your desk for drugs, with or without a warrant or probable cause? A system protects your desk from a routine police search but does not protect your body from sterilization--that's insane. It makes less than no sense.

Griswold is a less extreme case--there is not a physical seizure, not necessarily any permanent change to the body, not the specter of eugenics. But still: the government is effectively forcing people to have children. So much for being secure in your person. They can search your bedroom for evidence of illegal contraception if your neighbor sees a suspicious foil package, maybe even if you're married and suspiciously child free. So much for being secure in your home.

Lawrence? Sure, straight people have oral sex too, but you can't look at a straight couple and know they've done it. If you are gay, the government is forcing you to be celibate or be sent to jail. Some comfort it is that they need a warrant to search you. Oh, and you'll be protected from "cruel and unusual", but sending someone to jail for doing what every straight person takes for granted is not cruel, nosirree. If the police see you hold a man's hand, get some anonymous tips, bingo--they have probable cause to search your bedroom. Any time, any motivation. And no, they can't make you testify against yourself, but sure they can subpoena your partner and force him to testify against you. You incriminate yourself walking down the street together.

Without a substantive right to privacy, those procedural rights may be worth very little.

And as to the claim that you can find any right if you look for it: you cannot. You cannot find any basis for
"affirmative rights".

There is nothing that indicates a right to sufficient food. There is nothing that indicates a right to health care. There is nothing that indicates a right to public education. There is nothing that indicates a right to shelter. There is nothing that indicates a right to a clean environment. There is nothing that indicates a right to clean water. There is nothing that indicates a right to a job at a decent wage. There is nothing that indicates a right to immigrate to the United States from somewhere else, no matter what you're trying to escape.

Oh, you could argue that freedom of speech does you no good if you're starving to death, you could claim that has no less support from the text than the rights I defend above. But in the examples above, the government could use careful statutory drafting to commit the very same sins that the bill of rights was written to prevent. This is very different. These are a different kind of harm, that results from private sins, or at worst, governmental sins of omission.

The Constitution does not prohibit governmental sins of omission; it would be impossible to do. And the only private sin it prohibits is slavery.

That is an interesting interpretation of the ninth amendment that I am very interested in, though I have never heard it before.

One note, however. I think your 'freedom of speech' example is unnecessary. "Freedom of speech and of the press" was a term of art, like "consideration" in the contract context.

But that still doesn't explain Griswold (necessary and proper contraception as part of the protection against search and seizure?), and if Griswold is allowed under some marriage right it doesn't explain Eisenstadt which transforms the marriage right into an individual right with almost no explanation. And both are founded in Lochner, which normally doesn't get great reviews.

And you really have to stretch to get a homosexual marriage right as necessary and proper for any of the explicit rights.

I'm thrilled if that is the limitations of the horrifying penumbras--because I have never seen any formal limitations put on the expansion of penumbras. But it doesn't get you a huge proportion of the more controversial rulings which have been handed down.

"Necessary and proper" isn't quite the right term, as it's not in the text. It was just the best analogy I could think of. It's more like, you look at the substantive purposes of the amendments, the substantive harms they are trying to prevent and rights they are trying to protect.

"Freedom of speech and of the press" as a term of art? That's not how I've been taught it...I forget the word my professor used, but it meant "symbol of a larger concept". If it was a term of art then it protected prior restraints only, and not necessarily sending people to prison for political speech. Let alone the right to send stuff through the mail or not to recite a loyalty oath--that's post-New Deal stuff, mainly Warren Court stuff, in most of the examples I cite.

If the first amendment is getting at freedom of conscience, and the eighth amendment is getting at a general prohibition on torture and physical and sexual abuse, the analogous argument for the fourth amendment (and it's not only the fourth amendment, but I think that's the key one) is that it's getting at a basic right against arbitrary government invasions of your body and your home.

If they can criminalize any private relationship or reproductive decision, that creates a huge, huge opportunity for pretextual searches and selective enforcement. So in that sense it is "necessary and proper" to the fourth amendment. If the government can criminalize anything it likes, without any showing that it does any harm to any person at all, the procedural criminal protections are not worth much.

As for gay marriage, I analyze that under the equal protection clause.

p.s. you know the Constitutional Amendment that I find the hardest to interpret? The eighth. It sounds so simple, but I cannot find any satisfactory way to define "cruel and unusual". It's either arbitrary (whatever we did in 1789), or subjective (Marshall and Brennan's death penalty rulings), or a copout (the O'Connor approach where you're supposedly just looking objectively at changing public mores).

For that matter, how do we decide how much of a fine or bail is excessive? And why is it obvious to everyone that what counts as excessive fines and bails has changed since 1789, but what counts as cruel and unusual punishment has not?

I'd think it has something to do with the value and availability of money, which has changed quite a bit since 1789, where (hopefully) human pain and suffering hasn't been similarly devalued.

That, and there's a few dozen bail bondsmen within rock-throwing distance of any reasonably large county courthouse, who are all willing to have you sign over some collateral in exchange for bail. I'd suggest that back then such services were less competetive, but that's just a wild guess.

In the same vein, I was listening to a talk radio show this morning in which the topic of discussion was whether Scott Peterson ought to get the death penalty or life imprisonment. Most of the callers in favor of life held that position because they thought the punishment would be more likely to make him suffer more. Which brings up the question: is the death penalty more or less cruel and unusual than life in prison without possibility of parole?

Human pain and suffering was more devalued back then--not in the world as a whole, maybe, but in our country, yes. At least I would hope yes.

If the first amendment is getting at freedom of conscience, and the eighth amendment is getting at a general prohibition on torture and physical and sexual abuse, the analogous argument for the fourth amendment (and it's not only the fourth amendment, but I think that's the key one) is that it's getting at a basic right against arbitrary government invasions of your body and your home.

If they can criminalize any private relationship or reproductive decision, that creates a huge, huge opportunity for pretextual searches and selective enforcement. So in that sense it is "necessary and proper" to the fourth amendment. If the government can criminalize anything it likes, without any showing that it does any harm to any person at all, the procedural criminal protections are not worth much.

I'd be very relutant to express the 1st amendment protections as a generalized freedom of conscience. That kind of a terminology leads very easily beyond expressive activity and directly into protecting any activity with real belief behind it--an interpretation that might be somewhat vexing the case of say abortion clinic bombing.

Even your extremely broad 4th amendment construction doesn't reach Griswold unless it also decriminalizes investigation into drug use--an end that I might not be completely against as policy, but which is not even remotely a Constitutional right. And to get to Eisenstadt you have to be willing to extend the notion of privacy all the way to a non-pharmacy distributor, which is clearly ridiculous unless you think that states and the federal government have almost no abilty to regulate commerce.

Which is to say that I'm open to your understanding of the 9th amendment, but I don't think it gets you a lot of the places you seem to want to go with Constitutional rights. (Not that I advocate looking at Constitutional jurisprudence in the view of what you ends you want out of it.)

"I'd be very relutant to express the 1st amendment protections as a generalized freedom of conscience. That kind of a terminology leads very easily beyond expressive activity and directly into protecting any activity with real belief behind it--an interpretation that might be somewhat vexing the case of say abortion clinic bombing."

Oh, please, Sebastian, this is the sort of stuff that makes you very hard to argue with. That's one of the dumbest slippery slope arguments I've ever heard. Maybe the dumbest ever. Pick your reasoning; either is sufficient:

--Preventing murder is a compelling state interest and outlawing it is necessary in preventing it.

--Neutral laws of general applicability that have an incidental restriction on expressive activity do not implicate the first amendment.

Perhaps "freedom of the mind" is a better way of putting it than "freedom of conscience", but ye Gods.

Your drug use analogy is pretty lousy too. Drug use is not all-pervasive, and does actual harm. (When we outlawed a drug that was pervasively used, alcohol, it was thought to require a constitutional amendment. I don't get why this is so, actually, is it a commerce clause thing?)

I am not arguing that the government can never search bedrooms or bodies. That would be stupid.

Forget it. You're not taking me seriously and you never will. You have some basic contempt for or disconnect with other views of the Constitution that makes you unable to understand the arguments I'm making. You also seem unfamiliar with a lot of the case law. All this effort and you still just respond with idiotic strawmen. Enough of this--what a waste of time.

But one final question, while we're doing slippery slopes:

You don't believe there should be any heightened scrutiny under the equal protection clause for laws that discriminate against gay people.

You don't believe it is possible to discern any rights not explicitly enumerated in the Constitution. Unenumerated rights include, famously, the right to vote.

Is it constitutional for Congress to pass a law forbidding gay people from voting?

If not, why not?

The only out I think you have is "fundamental rights" analysis under the equal protection clause--the cases that hold that unequal treatment denying a fundamental right are subject to heightened scrutiny. But if it's impossible for judges to make any principled decisions about unenumerated but fundamental rights under the 9th Amendment, I don't see why it's any more possible under the 14th.

You can criticize a living Constitution all you want, it's flawed. But the only alternative anyone's come up with is a dead Constitution that protects nothing of value. The Federalist Society treats the Bill of Rights like an accountant reads the IRS Code--it's a search for loopholes.

"Forget it. You're not taking me seriously and you never will. You have some basic contempt for or disconnect with other views of the Constitution that makes you unable to understand the arguments I'm making."

I find this classic response from you very frustrating. I spend more time directly engaging nearly every single hypothetical you throw up than I do almost anyone and I have written tens of thousands of words in responses to you, meanwhile your treatment of me is to almost never respond to my hypotheticals or my direct questions. That is your right, but considering the fact that I am not the only conservative who has that experience with you I think publically blaming me for it is a bit much. In fact I was shocked when you responded to the question about how you sort protected and non-protected unenumerated rights, and I found it very interesting. But not typical.

For instance, I have said throughout our entire year of history in discussing this issue that the context and understanding of the laws AS PASSED AT THE TIME is important if you want to talk about unenumerated rights. By way of example, voting has always been seen as one of the most fundamental rights. Suggesting that voting is one of the most fundamental rights is as uncontroversial now as it was at any point in the history of our nation. That is why many of the amendments explictly talk about voting rights. You don't like to analyze things from that perspective because it doesn't leave you much room for new rights without Constiutional amendments. But to translate that into "unenumerated rights don't exist" is completely dismissive.

In a similar vein, I have raised the issue of the transition from Griswold (where the right was deeply grounded in marriage) to Eisenstadt (where the deep grounding was unceremoniuously dumped) three times, you have ignored it. Eisenstadt also can't be about worrys about police searchs and the like (which is where you ground the issue) because it involved a non-pharmacy distributor. Perhaps I haven't made my objection about clear enough. If Griswold is correct, and there is something special about the marriage relationship which requires Constitutionally mandated access to contraceptives, you can't transform that into an individual right a mere seven years later without re-explaining how it works. Doing so suggests that the deep grounding in marriage was a ploy and not serious legal reasoning. Brennan's opinion pretty much says that if Constitutional contraceptive rights exist at all they must be individual rights. Since Constitutional contraceptive rights were allegedly deeply grounded in the specialness of the marriage relationship, he could clearly be right about that and then forced into the idea that the Constitutional right doesn't exist. He didn't. That history directly implicates questions of judicial activism.

My familiarity with the cases is from study some years ago so if I don't remember certain details as well as someone studying them this quarter, I normally would trust you to forgive me. But so far I'm not sure which detail you think I've gotten wrong.

"The Federalist Society treats the Bill of Rights like an accountant reads the IRS Code--it's a search for loopholes."

Wow! Earlier you talked to me about being dismissive of the seriousness of liberal jurists' committment to the Constitution. Considering your opinion on the largest organization of conservative and libertarian lawyers, perhaps you are projecting your feelings about people who disagree with you onto me.

I think you are lucky not to have a conservative bent. You would have had this level of frustration throughout your entire time in college.

I hate to interrupt this interesting exchange, but I do want to confirm that hilzoy's interpretation of my "moron" comment was correct.

We now return you to our regular program, featuring Katherine and Sebastian.

Others have argued that the other amendments about voting, especially the need to pass the 15th amendment at more or less the same time, and Section 2 of the 14th amendment, which provides for penalties to states that deny the right to vote to any male citizens over the age of 21, suggest that the first section of the 14th, which provides for equal protection and due process and privileges and immunities, does NOT apply at all to the right to vote, let alone with heightened scrutiny.

This is what judges at the time said. Justice Scalia has said that there is no Constitutional right to vote in a federal election, and it is CW among the Federalist Society types I know.

As for Griswold, I am arguing for the substance of the decisions, not how they got there. You can make that criticism of Griswold, that they relied heavily on marriage and then applied the reasoning when marriage was not implicated. You can equally make that of Brown, when they focused heavily on segregation IN EDUCATION as a badge of inferiority, and then started applying it to all de jure segregation. But if they reached the right Constitutional outcome, well then.

You have asked me a lot of questions about what I think, and I have answered as well as I am able. So please answer me these questions. Please cite to the clause(s) you are relying on & mention the extent to which you are relying on the Ninth Amendment.

1) Would a law requiring the sterilization of people below a certain IQ be constitutional? If not, why not?
2) What about sterilizing people after they have two children?
3) Would a law denying gay people the right to vote be constitutional? If not, why not?
4) Would a law requiring gay people to register with some central authority, which would publish information about their sexual orientation in a publicly available database, when they move into a neighborhood--would that be constitutional?
5) Would a law making it a crime for a married women to reach the age of 40 without bearing at least one child, (unless she was a member of a religious order or could prove that she or her husband had a medical condition that prevented conception) be constitutional? If not, why not?
6) Would a law automatically taking legal custody of children from unmarried mothers under the age of 21 be constitutional? If not, why not?
7) Does the first amendment prevent government punishment of someone for refusing to recite the pledge of allegiance or take a loyalty oath? Keep in mind that the first amendment talks of a right to SPEECH, not silence, and that it was widely thought at the time to outlaw only "prior restraints" and not criminal penalties for speech.
8) Is flogging inmates a violation of the cruel and unusual punishments clause, given that it was widely practiced in the 18th and 19th centuries and into the 20th century in many states?
9) Was Bolling v. Sharpe correctly decided?
10) Is Dershowitz' "torture warrants" system constitutional?

here is some information relevant to the "Cruel and Unusual" punishment discussion:

By 1776, most of the colonies had roughly comparable death statutes which covered arson, piracy, treason, murder, sodomy, burglary, robbery, rape, horse-stealing, slave rebellion, and often counterfeiting. Hanging was the usual sentence. Rhode Island was probably the only colony which decreased the number of capital crimes in the late 1700's.

Some states were more severe. For example, by 1837, North Carolina required death for the crimes of murder, rape, statutory rape, slave-stealing, stealing bank notes, highway robbery, burglary, arson, castration, buggery, sodomy, bestiality, dueling where death occurs, hiding a slave with intent to free him, taking a free Negro out of state to sell him, bigamy, inciting slaves to rebel, circulating seditious literature among slaves, accessory to murder, robbery, burglary, arson, or mayhem and others. However, North Carolina did not have a state penitentiary and, many said, no suitable alternative to capital punishment.[10]

Now, the eighth amendment only applied to the federal government, and there were almost no federal crimes when the Constitution was written. But it does make one wonder about deciding that we have to figure out what the eighth amendment means based on was considered cruel and unusual in 1776.

And in case you think it was only the backward state legislatures:

"The last of the original states to remove capital punishment for sodomy was South Carolina, in 1873. In some of the states, notably Virginia in 1800, the capital penalties were retained for slaves, but not white people. In a peculiar twist, Thomas Jefferson, a man who is usually noted as a enlightened voice in American history, drafted a proposed revision of Virginia's laws. In it, he specified that the penalty for sodomy among men should be castration, and for women, a hole should be cut in the nasal cartilage of at least one half inch in diameter apparently in the belief that torture was preferable to the death penalty. Jefferson's proposal was unique not only because it specified mutilation as a punishment, but because he broke with the English tradition and included women in his definition of sodomy. Fortunately, Jefferson's "liberal" approach was never made law."

Quite a laundry list. I'll have to do hours of research, but I actually will. But the short answers for both 8 and 10 are almost certainly yes. Not answers that I like, but I really do distinguish between policies I like and Constitutional rights.

"As for Griswold, I am arguing for the substance of the decisions, not how they got there. You can make that criticism of Griswold, that they relied heavily on marriage and then applied the reasoning when marriage was not implicated. You can make that criticism of Griswold, that they relied heavily on marriage and then applied the reasoning when marriage was not implicated. You can equally make that of Brown, when they focused heavily on segregation IN EDUCATION as a badge of inferiority, and then started applying it to all de jure segregation. But if they reached the right Constitutional outcome, well then."

No, you are doing no such thing. The substance of Griswold is grounded in Lochner's understanding of rights, which I know you hate, and deeply in marriage. You are arguing that you like the substantive RESULT of Griswold. So what? I don't mind the result. I don't like the pretense that the result is a Constitutionally mandated result.

The funny thing for me is that I completely respect you interest in results--results I often agree with, but you extend no such respect for my interest in having a real process involving the American people as a whole on important innovations in our bedrock social compact.

Lochner, Griswold and the total constitutional prohibition on torture have one thing in common: a belief that for the procedural due process protections to mean anything, there must be some substantive limits on what the government can do to a person. If they can imprison you for anything at all, if they can torture you, if they can sterilize you...then the procedural protections will not be worth much.

Do you also believe that it is constitutional to sentence people to death and castration for sodomy?

If so--I guess I admire you for your integrity, since that can't be an outcome you like. But if that is the way the constitution is to be interpreted, it is dead. It is illegitimate. It protects nothing of value. And we would be much better off with a parliamentary, common law, system.

If that view is ever adopted, the Revolutionary War was a mistake and I want to go back to England. I am not exaggerating.

(left out a sentence: that does not mean there's no way to distinguish them.)

and your whole view seems to rely on an idea of democratic legitimacy--the supermajority. It is illegitimate for us to diverge from their will without a constitutional amendment.

From my point of view, first of all, they're dead and I'm not. Second of all, even if I had been alive to vote on ratification, I would not have been allowed to.

Less than half the country was allowed to vote. Some supermajority.

The whole exercise is illegitimate without the 13, 14th, 15th, and 19th amendments--and yes, the decisions of the Warren court giving force to those amendments and giving force to the bill of rights for the first time in our history.

Now, the ideas themselves are powerful things. I am proud to come to the country that gave them to the world. I love Jefferson and Madison and Adams. But if I have to accept not only their ideals, but the hundred blind and limited ways in which they failed to live up to their ideals, if we can only change those well, no thanks. We could do better on our own, through a pure common law system where everyone recognizes that the law must change.

omitted some words again; should read,

"if we can only change those when 2/3 of the House, 2/3 of the Senate and 3/4 of the states agree, well, no thanks."

One other thing:

I am taking a class on Foreign Affairs and the Constitution this semester. There is perhaps no other area where we have moved further from the text and original understanding of the Constitution than the foreign affairs powers. Everyone, and especially conservatives, accept most of these changes without a second thought. It is necessary to live in the modern world, we agree.

But God forbid individuals have too many rights, or that there be any limitations on what corporations can do to people.

"But if I have to accept not only their ideals, but the hundred blind and limited ways in which they failed to live up to their ideals, if we can only change those well, no thanks. We could do better on our own, through a pure common law system where everyone recognizes that the law must change."

Common law where everyone recognizes that the law must change? One of the key conceits of the common law system was the game where all the judges got to pretend that it was the rule as it had always been. And considering how much difficulty we have with the actual Constitutional rules, the idea that the protections you value would survive without them is surprising. The unfortunate thing is that I don't see any realistic limits on change in your view of jurisprudence, while you don't see realistic allowances for change in mine. Sadly we may both be right.

"you extend no such respect for my interest in having a real process involving the American people as a whole on important innovations in our bedrock social compact"

The Court is nominated by the President and confirmed by the Senate. We only get to act through our representatives, not directly, but it's not like there's no role. Heck, we only get to act indirectly in the amendment process, that has to clear 2/3 of both houses of Congress. And the amendment process is systematically skewed against some citizens (namely, representatives of high population states.)

Some changes of course still must be made through the amendment process.

Look, I know you hate Griswold, but it's not equivalent to saying there are no rules at all and the Court can do whatever it wants. Even the Lochner and Hamer v. Dagenhart and Plessy courts had their limits, as did the Dredd Scott Court, as did the Bush v. Gore court. Every Supreme Court justice and every Supreme Court in history has made both good and bad decisions, as a matter of both the policy outcome and the legal reasoning.

I have given you so many examples of cases where I would feel obligated to rule against my policy interests. And yet you say I am making it up as I go along, because I disagree with you about a few cases--though NOT about the most controversial decision the last few decades, where I agree with you, in defiance of my most of my political party and most of my friends and what I believe the right policy outcome is.

Scott Peterson just got sentenced to death, as far as I can tell because his wife was pretty and he's a jerk and there was no one else to blame. Makes me think (unfairly, no doubt) you fancy law-understanding people are dancing on the heads of pins.

But we know that the law does change in common law systems. Precedents are read broadly, and narrowly, and eventually overturned. And the highest court is Parliament. It changes slowly, though.

I think stare decisis is a better defense against too-rapid change than originalism. It's usually pretty clear when you are overturning a precedent, whereas judges can always claim that the original intent of the constitution mandates their decision, and the constitution is ambiguous. For instance, where is this quote from?

"It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted."

Note also that entirely apart from the policy implications of your views, I think they're also a misunderstanding of the founders expectations and desires.

I think it is absurd to suggest that the founders did not realize that what punishments were considered "cruel" was inevitably subjective and would inevitably change with time; that what punishments were considered "unusual" would inevitably change with time and they left it unclear whether by unusual they meant "uncommon", "excessive", or some combination; and that combining the two made it all twice as confusing (if 40 states passed laws allowing the worst torture imaginable within a few years of each other, it wouldn't be unusual anymore, so....)

"And yet you say I am making it up as I go along, because I disagree with you about a few cases--though NOT about the most controversial decision the last few decades, where I agree with you, in defiance of my most of my political party and most of my friends and what I believe the right policy outcome is."

No that isn't what I have said and I'm sorry if I haven't been clear. I have said that I can't discern the logical endpoint to your views, or why you stop where you stop. Your views seem very open-ended. You insist that they are not. You have clear points where you say things are too far, but I don't see why they are too far given your stated understanding--and I am not at all confident that people on your side of jurisprudential questions are even remotely in agreement with you. You argue as if I am attacking you when I say that Brennan was ridiculous when he said that the death penalty was unconstitutional. I'm not. I'm attacking his unsusually broad system of analysis. Maybe you identify with him, but I don't think you agree with his 'system'.

You say there are limits, but I don't understand them. If there is a Constitutional right to homosexual marriage, why don't you accept a precise 3 trimester system protecting a woman's right to choose? You have some hyper-fine distinction that I'm not seeing. All laws divide people into categories, but obviously not everything is an equal protection issue.

You act as if I'm cheating when I talk about allowing for technological innovations or applying case law to unforseen circumstances or talking about fundamental rights which were actually hashed out at the time of the writing of the Constitution. Maybe I am. But equally I feel like you are cheating when you throw out random 5 part tests that are tenuously connected to the Constitution--at best. You say you have limits, but I have no idea where they come from. Your ninth amendment exposition (above) is the closest you come. It was remarkably informative, but it still doesn't get at least half the things you seem to want.

Scott Peterson just got sentenced to death, as far as I can tell because his wife was pretty and he's a jerk and there was no one else to blame.

You're probably right, rilkefan, but the real tragedy IMO is that a human being has just been scheduled to die and I still don't give a damn. And call me crazy, but any system of media-jurisprudence relations that cheapens human life to the level of "entertainment" fodder like this is severely, fundamentally broken in ways that make me ashamed to be a part of this country.

"If there is a Constitutional right to homosexual marriage, why don't you accept a precise 3 trimester system protecting a woman's right to choose? You have some hyper-fine distinction that I'm not seeing. All laws divide people into categories, but obviously not everything is an equal protection issue."

Okay. This, I have explained multiple times, in personal emails as well as multiple posts on multiple threads. If you don’t remember, or if you are incapable of comprehending “history of discrimination,” “discrete and insular minority that the political process will not protect”, “immutable characteristic” “distinction that is so fundamental to the identity that one should not be required to change it” or “real difference”, I don’t know what to say. I didn’t make those up, I got them all from equal protection case law. And they’re not hard concepts to understand.

But say you have no respect for the case law, you want to throw out stare decisis and start over from the text. Well there is also nothing about the text of the clause that suggests it applies to racial classifications only, or not to sexual orientation.

All you have is “but they hated gay people, they never would have wanted to give them any rights.” To which I reply, that may be, but fortunately they didn’t write that into the text. We are bound by the Constitution, not by every thought and irrational prejudice in their heads. And it’s a good thing, too, because they also thought in 1789 that slavery was okay, that it was okay to execute people for inciting rebellion in slaves, that it was okay to castrate or execute people for something I consider not even a sin let alone a felony, that it was okay to jail people for denying the truth of Christianity or for criticizing the government. They thought in the 1870s that women should have no rights, and many if not most thought that black people should only be allowed to vote if they could pay a poll tax or pass a literacy test, and that the 14th amendment would not prohibit segregation laws or laws against miscegenation.

To which you mumble something about the democratic legitimacy of the supermajority. I point out that this supermajority was actually a minority of people who should legally have had the right to vote, and it didn’t include me, and I saw no reason to defer to its prejudices when they hadn’t even written them into the text.

Or you reply with the vaguest slippery slope argument imaginable, saying that that’s the only way to give any meaning to the constitution and otherwise, as my contract law professor used to say in parodies of bad slippery slope arguments, “we’ll all be eating roots.” (They must be some really nasty tasting roots, to be worse than torture, mandatory sterilization, arbitrary imprisonment and execution, and all of the other horrors you acknowledge would be perfectly constitutional in your view.) You don’t actually explain why any of the logical distinctions I’ve made, or other conceivable logical distinctions, are invalid, you just make a blanket assertion that they’re impossibly arbitrary and vague and worthless.

You also don’t explain how your “let’s mindread dead people!” approach settles anything. You don’t explain what to do in cases where it’s not so clear what people in 1780 thought, or where they disagreed—the relevant group is that ratifiers of the text, not the drafters. There are millions of them, and they’ve all been dead for over a century. It’s not always so easy to figure out what they thought. Nor do you explain how holding judges’ to “original intent” guards against abuse of power and arbitrary decisions any better than any other method of Constitutional interpretation.

That thing I quoted above?

""It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted."

That's from Dredd Scott.

Just because it is from Dred Scott, doesn't mean that the paragraph is wrong.

"If you don’t remember, or if you are incapable of comprehending “history of discrimination,” “discrete and insular minority that the political process will not protect”, “immutable characteristic” “distinction that is so fundamental to the identity that one should not be required to change it” or “real difference”, I don’t know what to say. I didn’t make those up, I got them all from equal protection case law. And they’re not hard concepts to understand."

That is a mishmash of various competing tests from all sorts of different equal protection cases. I would argue that some of the tests don't make sense--especially "discrete and insular minority that the political process will not protect" do you lose equal protection under the Constitution as your minority gainst politcal power? By that light you might suggest that gay people would have had full equal protection in the 1950s, but by the year 2000 they had gained about as much political power as is available for a minority that size. But even assuming all the tests correct it is not at all obvious that it applies for instance to the idea of marriage. Is marriage the union of a man and woman, or is marriage all about two people of whatever sex loving each other? You obviously want it to be the latter, but that isn't obvious at all.


Yes, not every case refers to every factor. I wanted to cover all my bases. I think the most sensible ones are "immutable characteristic or characteristic so fundamental one should not be forced to change it" and "history of invidious discrimination" but the court has used all of them, and so did I. "Discrete and insular minority" is the dumbest test for sure, but it is the most often cited, which is why I include it. And it does help explain why, e.g. age is not considered the same way as say, race. I will be old one day, so I have some incentive not to vote for laws that discriminate against old people. I will never be black, male or gay.I think all of them point in the same direction for sexual orientation. Would my argument be stronger if I pretended that some of them did not exist? That makes no sense.

As for the idea that the equal protection clause doesn't apply to marriage law, I do not know where on earth you dreamed that one up or how you square it with Loving v. Virginia--which says that marriage is a fundamental right, which would indicate HEIGHTENED EP scrutiny--or the Supremacy Clause.

Seriously, I freaking hate appeals to authority, but I think you had a weird Con Law teacher.

i just stumbled over here looking for what john roberts said about griswold. no dice, but what's up with galt's ending comment about griswold and your me-tooing? okay, the republic won't fall. but women's lives will change drastically. for the worse, unless you love jesus more than sex (perhaps you do?).

i skimmed, but galt starts out saying she thinks the constitution should be a "guideline." well. the constitution is all about liberty. for women, that decidedly means birth control pills. so it doesn't make sense that anyone but an extreme right-winger would opine, "meh, griswold."

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