Friday, November 18, 2005
As one of those blowhard conservatives.... I feel its incumbent upon me to offer up a counterpoint to Fran's comments. I'll be the first to agree that the causes Fran champions in his comments are very much worthwhile. If I were to buy in to a couple of the premises he buys into, I'd have little problem with his argument. These premises are:
1. The rightful role of the judiciary is politics by other means. This is an extremely dangerous position. The Court is granted advantages virtually no other participant in our government is afforded: lifetime tenure and authority to override laws. When the Court takes a modest interpretation of its mandate, these conditions are a blessing. They insulate the Court from political pressures that can work against the Constitution for which the Court speaks. However, when the court arrogates to itself the role of "superlegislator", advancing an agenda, even a good one, it works against democracy. Now, reasonable people may conclude, "So what? I approve of the positions they're taking." But you had best pray to your personal god that you never loose hold of the reins of power. While you or I may be more than happy to see the Court push for greater liberty, other people may be more interested in seeing it push for other goods: equality, divine sanction, or even "for the chilllllldrennnnnn....". Once Pandora's Box is opened, and the court becomes an active participant in the system, rather than a neutral arbiter acting on behalf of the Constitution, you really don't have much to complain about once they start using the court in that way, even undermining the protections of liberty that are objectively spelled out in the document.
2. Its not possible for a justice to separate policy preferences from their decisions. Everyone has biases. So, its asking a lot to expect people to overcome them. But someone on the Supreme Court's primary bias should be in favor of the Constitution. As such, its not particularly difficult for me to imagine a bigot and someone who supports racial equality siding contrary to their personal views in Brown. Likewise, it doesn't seem essential that one supports government intrusion into people's sex lives to think that overturning case law might not be the best way to get the government out of people's bedrooms. The crucial question is what is in the Constitution, not what do you think the law should be. Its precisely in this context that the activist charge takes shape. In her majority opinion in the Michigan affirmative action case, O'Connor addressed the necessity of affirmative action in greater depth than its constitutionality. The decision was scant in addressing the specific constitutional charge - that differing standards for two classes of citizens violates the Equal Protection clause.
3. Justices can rightly exercise wide latitude in interpreting the Constitution. A good lawyer can make a case for pretty much anything, and there's very little we can do about their decisions. The question is are they the right decisions We can evaluate these decisions by considering the proximity of their reasoning to the constitution. I think its fair to conclude that a justice arguing for the decision based on the results of siding one way or the other, they are arguing for usurping the authority more appropriately left with the the branches answerable to the electorate. If you have to seek out "emanations and penumbras" in the Constitution to justify your decision, there's a better than even chance you're pulling shit your ass. If, as was the case in the juvenile death penalty decision, you're citing foreign law to establish standard (juvenile death penalty consistently got very widespread support in the U.S.) critics are hardly out of line calling you an activist. Any of these things is a long, long way from the notion that the "public use" clause in the Fifth Ammendment (...nor shall private property be taken for public use, without just compensation.) doesn't equate public use with public benefit.
I can't agree more with Fran that the Constitution provides the bill of rights and other amendments as a limit on the power of government to threaten its citizens. In fact, I'll go so far as to say that I'm sympathetic with many of the goals of these activists. But, when you turn the judiciary from the defenders of that constitutional system to a tool to advance an agenda, even a legitimate one, you undermine the constitution's ability to do that.
1. The rightful role of the judiciary is politics by other means. This is an extremely dangerous position. The Court is granted advantages virtually no other participant in our government is afforded: lifetime tenure and authority to override laws. When the Court takes a modest interpretation of its mandate, these conditions are a blessing. They insulate the Court from political pressures that can work against the Constitution for which the Court speaks. However, when the court arrogates to itself the role of "superlegislator", advancing an agenda, even a good one, it works against democracy. Now, reasonable people may conclude, "So what? I approve of the positions they're taking." But you had best pray to your personal god that you never loose hold of the reins of power. While you or I may be more than happy to see the Court push for greater liberty, other people may be more interested in seeing it push for other goods: equality, divine sanction, or even "for the chilllllldrennnnnn....". Once Pandora's Box is opened, and the court becomes an active participant in the system, rather than a neutral arbiter acting on behalf of the Constitution, you really don't have much to complain about once they start using the court in that way, even undermining the protections of liberty that are objectively spelled out in the document.
2. Its not possible for a justice to separate policy preferences from their decisions. Everyone has biases. So, its asking a lot to expect people to overcome them. But someone on the Supreme Court's primary bias should be in favor of the Constitution. As such, its not particularly difficult for me to imagine a bigot and someone who supports racial equality siding contrary to their personal views in Brown. Likewise, it doesn't seem essential that one supports government intrusion into people's sex lives to think that overturning case law might not be the best way to get the government out of people's bedrooms. The crucial question is what is in the Constitution, not what do you think the law should be. Its precisely in this context that the activist charge takes shape. In her majority opinion in the Michigan affirmative action case, O'Connor addressed the necessity of affirmative action in greater depth than its constitutionality. The decision was scant in addressing the specific constitutional charge - that differing standards for two classes of citizens violates the Equal Protection clause.
3. Justices can rightly exercise wide latitude in interpreting the Constitution. A good lawyer can make a case for pretty much anything, and there's very little we can do about their decisions. The question is are they the right decisions We can evaluate these decisions by considering the proximity of their reasoning to the constitution. I think its fair to conclude that a justice arguing for the decision based on the results of siding one way or the other, they are arguing for usurping the authority more appropriately left with the the branches answerable to the electorate. If you have to seek out "emanations and penumbras" in the Constitution to justify your decision, there's a better than even chance you're pulling shit your ass. If, as was the case in the juvenile death penalty decision, you're citing foreign law to establish standard (juvenile death penalty consistently got very widespread support in the U.S.) critics are hardly out of line calling you an activist. Any of these things is a long, long way from the notion that the "public use" clause in the Fifth Ammendment (...nor shall private property be taken for public use, without just compensation.) doesn't equate public use with public benefit.
I can't agree more with Fran that the Constitution provides the bill of rights and other amendments as a limit on the power of government to threaten its citizens. In fact, I'll go so far as to say that I'm sympathetic with many of the goals of these activists. But, when you turn the judiciary from the defenders of that constitutional system to a tool to advance an agenda, even a legitimate one, you undermine the constitution's ability to do that.
