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June 01, 2009

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but the legislatures are elected by the people, whereas the Supreme Court isn't

Nor is the President. The President is elected by the electors.

Also, the legislatures are only elected by some of the people. That hardly seems democratic.

Well, if you want to discuss historical and modern concepts of "democracy," we could spend all year just on that.

Get back to the main point: In the context of a discussion where McArdle is making the (painfully obvious) point that some people feel disfranchised when what they see as a life-or-death decision is no longer subject to a democratic vote (thanks to a Supreme Court decision), it is simply absurd to respond that "we as a country" decided on the course that, in fact, the Supreme Court decided.

That kind of slippery language is trying to win the debate by just defining away any disagreement. E.g.: "How could you be upset that Bush tortured people without anyone voting to let him do so? The President represents the country, and therefore we as a country adopted torture, so just suck it up."

E.g.: "How could you be upset that Bush tortured people without anyone voting to let him do so? The President represents the country, and therefore we as a country adopted torture, so just suck it up."

Lousy analogy. "We" passed laws and signed treaties prohibiting torture. Dick and Dubya broke those laws. "We" are not amused when "our" laws are broken.

To be fair, if "we" do not prosecute those who violated "our" laws, then "we" will indeed have "adopted torture". And if that leads to regretable consequences "we" will indeed have to "suck it up".

--TP

"Well, if you want to discuss historical and modern concepts of "democracy," we could spend all year just on that. "

No, we don't need that. Just an acknowledgment that democracy is not simply majority rules on all matters by vote. Which is ultra-basic.

Otherwise, what Tony P said.

Further:

"(painfully obvious) point that some people feel disfranchised when what they see as a life-or-death decision is no longer subject to a democratic vote"

But it is subject to a vote. They can vote for reps that would amend the constitution.

"it is simply absurd to respond that "we as a country" decided on the course that, in fact, the Supreme Court decided. "

We as a country granted the Supreme Court the power to protect minority rights. That is a key facet of democracy. When it does so, it is acting with the imprimatur of "we the country." Nothing absurd about it. We wouldn't be a functioning democracy without such protections - at least not one worth emulating.

Lousy analogy. "We" passed laws and signed treaties prohibiting torture. Dick and Dubya broke those laws. "We" are not amused when "our" laws are broken.

Aha, you've just hit on a reason that the analogy is even better. "We" passed laws in all 50 states significantly limiting abortion. The Supreme Court decided to make what "we" had enacted null and void. So if you're fine with someone saying that "we the country" overturned the laws that "we the country" had passed, then you should also be fine with saying that "we the country" (in the form of President Bush) decided to ignore the laws that "we the country" had passed.

Why are you guys so resistant to any nuance? Everything done by any aspect of the federal government is "we the country"?

"Why are you guys so resistant to any nuance? Everything done by any aspect of the federal government is "we the country"?"

The funny thing is, you seem to be totally allergic to any nuance! To you, "Democracy" means: majority vote. Full stop. Any elaboration would require a year.

"then you should also be fine with saying that "we the country" (in the form of President Bush) decided to ignore the laws that "we the country" had passed"

But we are fine with that! That's what Tony wrote! If we don't do something to punish Bush et al for violating those laws, then we have endorsed it!

"Everything done by any aspect of the federal government is "we the country"? "

The Supreme Court is one of the three co-equal branches of the federal government. Any action taken by the Supreme Court is endorsed by "we the country" with the same veracity as one taken by the other two of the three branches.

Any action taken by Congress and the Executive is endorsed by "we the country" unless "we the country" do something to counteract that action.

By the way: One of the ways that "we the country" can counteract an action by Congress or the Executive is through...a SUPREME COURT decision!!!! (or other federal court of competent jurisdiction)

"Get back to the main point..."

Again, I return to my original counterargument. The Supreme Court acted against the majority of voters/legislators in the South when it overturned segregation. Many of those Southerners felt disenfranchised, but "we the country" (via the Supreme Court in which WE have vested such authority) decided that segregation violated the Constitution.

It would not be an attempt to "win" the debate to point that out, it would just be pointing out that the Supreme Court acts on behalf of "we the country" in order to protect Constitutional rights.

Thus, it's false to say that laws when passed are expressions of "we the country" but not Supreme Court decisions. Both are valid expressions. Even if people feel disenfranchised by the latter. They can always amend the Constitution.

Bottom line:

If legislation is the equivalent of "we the people" acting, so is a Supreme Court decision.

All of this verbiage is really beside the point: do you guys understand or comprehend at all why it is that a 1) life-or-death decision by 2) the unelected judiciary may seem to some people as more alienating than if the decision had been made by the ordinary legislative process? I don't know how I can put it any more simply than that. I understand your impulse (because you like what the Supreme Court did here) to try to define it as a "democratic" decision, or to try to claim the mantle of "we the country," etc.

But is there any possibility that you can imagine how someone else might have different feelings from yourself? Not even if, for example, you imagine the Supreme Court issuing a mandate that bombs be dropped on Iraq for the next 30 years, and if you couldn't stop the bombs except by the almost-impossible process of passing a constitutional amendment? You can't imagine that in such a situation, you'd be upset with a triumphalist war-hawk who said "nyah, nyah, we as a country made the decision to keep bombing Iraq, and there's nothing you can do."

"I understand your impulse (because you like what the Supreme Court did here) to try to define it as a "democratic" decision, or to try to claim the mantle of "we the country," etc."

NO!!! You missed the point entirely. It is a decision of we the country because it is the decision of a body in which we the country vested that power. Not because I liked the decision.

FREX: I didn't like Bush v. Gore, but we the country definitely elected Bush. Not Gore. I'm pretty sure. Hated that decision. Felt it was awful. But it did not lead me to delegitimize one of the three branches of our government.

"You can't imagine that in such a situation, you'd be upset with a triumphalist war-hawk who said "nyah, nyah, we as a country made the decision to keep bombing Iraq, and there's nothing you can do."

I'm sorry, did someone say something like that in the present discussion? If so, where?

"do you guys understand or comprehend at all why it is that a 1) life-or-death decision by 2) the unelected judiciary may seem to some people as more alienating than if the decision had been made by the ordinary legislative process?"

Sure. But I would try to discuss the absolute importance of the judiciary in guaranteeing Constitutional rights, and how decisions by the Court are every bit as legitimate as decisions by the legislature.

In some ways moreso, because legislatures can often ignore minority rights, but the Court should not. I would reject any claim that a Supreme Court decision does not reflect a decision by "we the country." Even if people feel that way (which I imagine some would), they would be misguided. And I would seek to explain my position on this matter, as I have on this thread.

..."we the country" (in the form of President Bush) decided to ignore the laws that "we the country" had passed."

JD, if your idea of the Constitution "we" live under is that it grants the President the power to ignore the laws, you and I are too far apart to fit into the same "we".

As for "laws in all 50 states significantly limiting abortion", are you sure about that? Abortion was legal in at least some states before Roe, I thought. But that's not the main point, anyway.

The main point is that "we" have a Constitution which applies to all Americans. It does not specifically protect an American's right to have an abortion, but neither does it specifically protect an American's right to forbid another American to have an abortion. An American who happens to live in Oklahoma and an American who happens to live in Connecticut are both protected by the same federal Constitution. What protections the federal Constitution affords to individual Americans is not a matter for state legislatures (or Presidents) to decide. "We" signed up long ago to a system whereby the Supreme Court adjuticates competing claims over Constitutional rights. If a woman claims the right to abort her pregnancy (or to own a gun, for that matter), and a state legislature claims the power to forbid it, the Supreme Court is where the dispute gets adjudicated. You wish it were not so. But it is so.

--TP

"do you guys understand or comprehend at all why it is that a 1) life-or-death decision by 2) the unelected judiciary may seem to some people as more alienating than if the decision had been made by the ordinary legislative process?"

Yes, I understand it perfectly well.

Do you understand that Roe v Wade played out exactly according to the rules we all live under?

More importantly, do you understand that *sometimes your point of view will not win the day*, and when that happens it does not constitute license to harrass, assault, and murder folks who are doing legal things that you don't approve of?

"But is there any possibility that you can imagine how someone else might have different feelings from yourself?"

Is there any possibility that you can imagine that having different feelings and beliefs *doesn't give anyone the right to shoot other people down in cold blood*?

I'm quite aware that there are a lot of people who thought Roe was crappy law, a morally bad decision, and generally a deep, foul stain on the nation.

That doesn't give anyone the right to shoot other people.

No shooting. No harrassment, no physical intimidation, no assault, no shooting.

Capisce?

Is there any possibility that you can imagine that having different feelings and beliefs *doesn't give anyone the right to shoot other people down in cold blood*?

Absolutely, I agree. But just as with Islamic terrorism, one should be intellectually capable of thinking about the root causes that made someone feel aggrieved, without in any way excusing the horrible things done in response to the grievance.

I didn't like Bush v. Gore, but we the country definitely elected Bush. Not Gore. I'm pretty sure. Hated that decision. Felt it was awful. But it did not lead me to delegitimize one of the three branches of our government.

This is wildly missing the point. We the country elected Bush, because at the end of the day, Bush had more votes in the electoral college.

But that isn't the same as saying that "we the country decided the case of Bush v. Gore." No, "we" didn't: the five conservative Justices did. If you're one of those five conservative Justices, posting under a pseudonym, then you can claim to be part of the "we" that decided that case. Not otherwise.

NB: I find it amusing to find out that after all the calumnies heaped upon the 5 conservatives Justices for their Bush v. Gore decision in 2000, after all of the articles and blog posts and blog comments complaining (with justification) that that decision was completely undemocratic in going contrary to the way that people voted, I've now stumbled into what must be the only group of liberals alive who think that the 5 conservative Justices can be completely equated and identified with "we the country" or "we the people."

JD All of this verbiage is really beside the point: do you guys understand or comprehend at all why it is that a 1) life-or-death decision by 2) the unelected judiciary may seem to some people as more alienating than if the decision had been made by the ordinary legislative process?

Actually, I would find it completely alienating if a life-or-death decision were to be made by either the unelected judiciary or ordinary legislative process.

But I'm completely comfortable with a ruling, either by the judiciary or by legislative process, that this life-or-death decision gets to be made by the pregnant woman with the advice of her doctors.

Do you really not understand how alienating it is to have men arguing that a pregnant woman can't be allowed to make her own life-or-death decisions, because that right properly belongs to the legislature or the courts?

Even if you can't understand that, can you not see that pregnant women, faced with the news that their pregnancy may kill them, or will deliver a baby doomed to a very short and agonising life, may feel differently than you do about letting the legislature/the judiciary decide whether they're going to live or die, or when they're going to have to deal with the loss of their child and how much agony they have to put their child through? You may think they ought not to be allowed to decide: can you not understand that they might feel differently about that?

"We the country elected Bush, because at the end of the day, Bush had more votes in the electoral college. "

Again, you're begging the question. Bush had more electoral votes because the Supreme Court told Florida to disregard Florida State law. We the country acquiesced. Thus we the country decided Bush won the election.

"after all of the articles and blog posts and blog comments complaining...that that decision was completely undemocratic in going contrary to the way that people voted"

Wait, I'm not saying you can't complain about the legal rationale underlying Roe v. Wade. Complain away. Try to persuade the SCOTUS and the voters. But it's mistaken to argue that Supreme Court decisions are less legitimate in a democracy that has vested the power to adjudicate Constitutional decisions to the Supreme Court. In fact, that's kind of a dangerous notion.

"Absolutely, I agree."

Thank you.

"But just as with Islamic terrorism, one should be intellectually capable of thinking about the root causes that made someone feel aggrieved, without in any way excusing the horrible things done in response to the grievance. "

I doubt there is anyone here who is incapable of doing exactly that.

Here's the thing.

For years, and years, and years, folks have been harrassing Tiller and people like him. Blowing up clinics. Assaulting clinic staff and their patients. Shooting people.

So, going through the exercise of examining the root causes of why anti-abortion people are pissed off is interesting. But I kind of don't give a crap.

I'm not talking about the actual point of view of people who oppose abortion, I'm talking about the cute intellectual dialogue about whether the SCOTUS is democratic, blah blah blah.

I don't give a crap.

Roe was decided according to the rules we live by. If folks aren't happy with those rules, change them. If it's hard to change it, try harder. Or, take your lumps.

If you think abortion is wrong, make your case and do any of the 10,000 things that are available to do to make it less likely that they'll be necessary.

But you don't get to go shooting people if you don't get your way.

That's why McArdle's article is a load of disingenuous crap, because behind all of the "of course, this isn't what *I* think" weasel language is a straight up defense of the assassination of Tiller.

Why can't liberals just understand why anti-abortion people are pissed off? Because anti-abortion people are f**king shooting at them, that's why. It interferes with the empathetic function.

Funny, that.

Wanna live in this country? Play by the rules.

Wanna bring the guns when you don't get your way? We're going to have a problem.

That's the heart of the matter.

There are a lot of different kinds of people who live in this country, and we're never going to agree about a lot of things, some of them quite profound indeed.

If we're going to sort out our differences by shooting each other dead as we go about our daily business, we're going to have big, big problems.

I don't care how pissed off you are about Roe v Wade, it's not justifiable.

"No, "we" didn't: the five conservative Justices did."

7, it was 7 Justices who ruled for Bush.

Actually I retract. It was 7 that agreed that the willey-nilly procedures were unconstitutional.

You know, I think of this kind of thing as just blazingly obvious, but what the hell:

SCOTUS as a branch of government was the result of a democratic process, more or less, that was the drawing-up of the Constitution. Furthermore, this is not written in stone: we can amend the Constitution to have SCOTUS judges elected, or drawn randomly from the populace, or drafted, or serve limited terms. We haven't chosen to do that as a nation, so (again, pretty much obviously) we've by default elected to keep things the way they were designed initially.

I don't see anything undemocratic about this. We don't on any periodic basis change the rules. We have a buttload of laws that are not sunsetted. We have a President that serves a full four years, even if he turns out to be unpopular.

We could have things be different, but we don't choose to, which is just about the same thing as choosing not to.

We also have a President who can, unilaterally, exercise some respectable amount of power, all without anyone else's say-so.

Which is probably undemocratic, by some definition. Also, consider Congress, who regularly make monumentally large decisions without bothering to consult the electorate (oh, sure: every six years, for Senators).

I don't have a problem with SCOTUS functioning the way they do. Do you, JD, have any particular redesign of SCOTUS in mind?

I admire your stamina with JD, Eric. I figured we'd reached this stage by yesterday.

I don't have a problem with SCOTUS functioning the way they do. Do you, JD, have any particular redesign of SCOTUS in mind?

No, obviously not. I've not suggested any such thing. I'm merely pointing out that the junior high civics banality that the Supreme Court's function as part of our government is NOT democratic, NOT to represent "we the people." Quite the opposite. It's there to provide a brake or check on what we the people might do when we get carried away.

That's generally a good role for the Supreme Court to play. It just isn't truthful to say that "we the people" have spoken when that happens . . . no, "we the people" said one thing, and the Supreme Court said the opposite. It's a pathetically blind political theory that ignores any distinctions between those two events.

It's a pathetically blind political theory that ignores the central role judiciary checks play in guaranteeing human rights, and the necessity of human rights to democracy.

It's a pathetically juvenile conception of democracy that thinks it only entails majority votes, and that judicial protections of rights are IN FACT undemocratic!

Your theory is like the "no true Scotsman" fallacy. Democratic government says, "Death penalty for child rapists." Supreme Court (much less democratic) says "sorry, you can't do that no matter how many people vote for it." Purely descriptive view of what just happened: democratic law was overturned by less democratic branch of government. Your view: "But when an unelected body does something that I really like, that is more truly democratic than the democratic vote that was overridden."

Look, as I've already said, it's generally a good thing that the judiciary "guarantees human rights." But it's silly to say that when the judiciary reverses the people, its actions are indistinguishable from "we the people." In fact, if you blind yourself to such an obvious distinction, you lose the very ability to explain why it is that it's a good thing that we don't have rule by simple majority vote! If you can't tell the difference between "we the people" and a governmental body whose very purpose is to check "we the people," then it no longer becomes coherent to point out that sometimes "we the people" make a decision that does need to be reversed.

"Supreme Court (much less democratic) says "sorry, you can't do that no matter how many people vote for it." "

But that's not true!!!! You can amend the Consitution if enough people vote on it!!!

Voting on it is still an option. AMEND. THE. CONSTITUTION. By voting. We've done it many times in the past. Jeez, I've already mentioned that like ten times on this thread ALONE.

The Supreme Court is part of "we the people" because "we the people" have vested in it the power to decide such matters. Its actions are thus just as legitimate as a legislature's.

But I don't think we're going to agree on this, and we're talking past each other, so I'm done with this discussion.

...and if the people democratically choose to limit the everyday activities of democratic government in this way? What then? Is this democracy, or not?

Voting on it is still an option. AMEND. THE. CONSTITUTION. By voting. We've done it many times in the past. Jeez, I've already mentioned that like ten times on this thread ALONE.

27 /= many.

Do you at least realize that amending the Constitution takes immeasurably more effort and time than passing a piece of state legislation? Will you admit that much?

The Supreme Court is part of "we the people" because "we the people" have vested in it the power to decide such matters. Its actions are thus just as legitimate as a legislature's.

The question, for the zillionth time, isn't whether the Supreme Court is "legitimate" or not. It's whether when the Supreme Court decides something, no matter how controversial and upsetting, it can accurately be said that "we the people" made that specific decision (it is NOT responsive or relevant to say that "we the people 200 years ago" set up the Supreme Court in the first instance).


"Do you at least realize that amending the Constitution takes immeasurably more effort and time than passing a piece of state legislation? Will you admit that much?"

I have never claimed otherwise. There is nothing to "admit."

"The question, for the zillionth time, isn't whether the Supreme Court is "legitimate" or not. It's whether when the Supreme Court decides something, no matter how controversial and upsetting, it can accurately be said that "we the people" made that specific decision "

The answer, for the zillionth time, is YES!!!

IT CAN!!!

Because that...is what we the people decided the Supreme Court should do!!! So we the people endorse the Supreme Court's decisions in the same way that we the people endorse the legislature's and executive branch's decisions.

OK, then, do you realize that the way in which "we the people" approve the Supreme Court's decisions (by having ancestors who set up the system 200+ years ago, or by not taking up arms in rebellion today) is a bit different than the way in which "we the people" approve decisions by legislators who stand for election every two or so years? What do you make of that difference?

"What do you make of that difference?"

It is an essential component of a functioning, healthy democracy that protects human rights. Therefore, I consider it valid, legitimate and an expression of the American people's enduring commitment to the protection of human rights, even and ESPECIALLY around controversial issues and minority interests.

Without it, our democracy would be imperiled. We the people don't want that. If we did, we would change it. We've had 200+ years to do so if we the people were so inclined.

And I do have to say that you're quite possibly the only person on the entire Internet, if not in all of human existence, who has ever said that "we the people" are the ones making each and every specific Supreme Court decision (not just that by legal fiction, "we the people" created the Supreme Court 200+ years ago). I shouldn't think it too controversial to point out that Supreme Court decisions are actually made by a majority vote of a particular set of 9 lawyers.

Wait, "we the people" are the ones making each and every specific Executive branch decision (not just that by legal fiction, "we the people" created the executive branch 200+ years ago). I shouldn't think it too controversial to point out that Executive branch decisions, ultimately, are actually made by a majority vote of one President.

Wait, "we the people" are the ones making each and every specific legislative branch decision (not just that by legal fiction, "we the people" created the legislative branch 200+ years ago). I shouldn't think it too controversial to point out that legislative branch decisions are actually made by a majority vote of one hundred senators or 435 reps.

"And I do have to say that you're quite possibly the only person on the entire Internet, if not in all of human existence"

Gary Farber.

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