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October 12, 2006

Pillars of Government Week: Part III, The Judiciary

Part I of Pillars of Government week looked at whether the military, as an institution, is in need of reform.

Part II examined Congress: the House and the Senate; the structural issues that have led to their corruption and some suggestions for fixing these institutions.

Part III of Pillars of Government week takes on the Judicial branch. I am skipping ahead in Grim's post a bit. As a child, I never would eat my vegetables first.

I have always been in love with the law - Con law especially - so I have looked forward to this post all week. I wish I'd had more time to prepare for it. But having been out of town at various conferences the past two weeks, I'm still digging out at work. Consequently this post will not be everything I would wish. I'll have to rely on my wonderful readers to make up for my lack of expertise and smarts. Grim opened his section on the judiciary with a statement I feel bound to dispute:

Unlike the other branches, the Judiciary does not appear to be corrupt. The stresses it is placing on the electorate are not less severe -- but they are not the fault of the judiciary, which is functioning as the law requires. It is that the law's current requirements are unwise and destructive to the stability of the nation.

I could not disagree more. Is there rampant corruption at the level of individual judges? As a profession there is much to admire in the judiciary. But it is disturbing that the few judges who do step out of line are rarely, if ever, brought to account. As a society, we seem unwilling or unable to rein in the judiciary even when presented with cases where judges habitually abuse their authority.

In any position holding life tenure we must be willing not only to sanction but to remove from office those who abuse the powers they are given. If that fails to happen, something is fundamentally wrong with the system, and when it becomes clear the people are not able to hold their servants accountable, the system has failed.

I believe the judiciary as an institution has become corrupt in the sense that it no longer works the way the Founders intended. Arguably change itself is neither positive nor negative in nature; institutions are designed to evolve over time. But that evolution should result in improvement and increased efficiency, not degradation of performance. Instead, the evolution of the judiciary has occurred in such a manner that the system of checks and balances has become disrupted. Consequently the judiciary is no longer accountable to the public it serves, and this presents an issue that must be addressed. Increasingly, judges are usurping the legislative role and overstepping their constitutionally designated function. Many now actively make law where they should be deferring to the will of the people.

Why is this a problem? At the level of SCOTUS, unelected judges are removing important public policy matters from all possibility of debate and effectively writing them into the Constitution, from whence there is no possibility of review or repeal, unless by those same unelected judges. They are carving their own policy preferences into stone.

Because of the long standing practice of stare decisis, their decisions are unlikely to be overturned, even by their peers. Judges cannot easily be removed from office when they overstep their authority and they are almost never held accountable for their actions. They serve for life. Thus, their encroachment on the legislative and executive functions represents a clear and present danger to democratic governance that cannot and must not be tolerated.

When was the last time any of you recall a federal judge being removed from the bench for cause?

Remarkably, in 200+ years only six judges have been impeached. Congress critters may be voted out of office and Presidents have term limits. Judges, on the other hand, unless they are Alcee Hastings, who for his sins was sentenced to hard labor in the House of Representatives, seem to receive their severance notices mainly from the hand of Almighty God, as Chief Justice Rehnquist recently learned to his immense surprise. We'd like to think the boss was not displeased with his performance.

What was the Founding Fathers' original intent for the Judicial Branch? We may look to two sources: the Constitution and the Federalist papers. Grim places most of the onus for the current problems with the judiciary on the 14th Amendment, but we would trace them farther back than that to Marbury vs. Madison and the advent of judicial review.

During the Roberts confirmation hearings, Senator Hatch asked a question that goes to the heart of one of the greatest controversies in modern American jurisprudence:

Some think that judges exist to defend and promote progress, preserving the gains of the past and bringing us to a better future of equality and justice. Now, that does not sound -- to use a word you have used to describe judges -- very modest to me.

On the other hand, Senator DeWine noted Justice Byron White, appointed by President Kennedy, said that judges decide cases; and I thought that was an important quote yesterday. Yesterday you used the analogy of an umpire who calls balls and strikes but neither pitches nor bats. Please help the committee sort this out by describing further the role you believe unelected judges play or should play in our system of government.

Are they charged, for example, with using the Constitution to effect cultural and political reform, or does the Constitution require that this should be left to the people and their elected representatives?

How can the judiciary sit in constitutional judgment over the legislative and executive branches while still remaining co-equal with them?

His question underscored a fundamental misunderstanding most people have about the Constitution. Read Judge Roberts' answer carefully:

It goes back to Marbury vs. Madison.

And what Chief Justice Marshall explained in Marbury vs. Madison was that, well, if we've got to decide cases, that's our constitutional obligation. We've got to decide whether, in a particular case, something's consistent with the Constitution or not.

So, we have to decide what the Constitution means. And that's what the framers intended.

So, the obligation to decide cases is the only basis for the authority to interpret the Constitution and laws. That means that judges should be careful in making sure that they have a real case in front of them, a real live dispute between parties who have actual injury involved, actual interests at stake because that is the basis for their legitimacy.

And then they're to decide that case as a judge would, not as a legislator would based on any view of what's the best policy but as a judge would based on the law. That's why the framers were willing to have the judges decide cases that required them to interpret the Constitution, because they were going to decide it according to the rule of law.

The people who framed our Constitution were jealous of their freedom and liberty. They would not have sat around and said, Let's take all the hard issues and give them over to the judges. That would have been the furthest thing from their mind.

Now, judges have to decide hard questions when they come up in the context of a particular case. That's their obligation. But they have to decide those questions according to the rule of law -- not their own social preferences, not their policy views, not their personal preferences -- according to the rule of law.

What Roberts was saying here is important. Though the Constitution created three co-equal branches, each with the same authority to say what the Constitution meant, in Marbury vs. Madison SCOTUS did something revolutionary: it "interpreted" an implied power into the Constitution, saying that the authority to try cases arising under the Constitution necessarily implied the power to say what that document meant; otherwise the courts could not do their job properly. Essentially the Court was arrogating enormous power to itself. This was not necessarily unreasonable, but Marbury had a multiplicative effect that its makers could not possibly have foreseen at the time. Slippery slope doesn't begin to describe it.

That power has grown over the years, and in modern times many have come to believe that the Court's power to interpret the Constitution implies SOLE power to say what the Constitution means; that it is of necessity the court of last resort. But they forget that this implied power rests on a power grab SCOTUS created for itself, in Marbury vs. Madison! Those who fret in modern times about Executive branch overreaching would do well to contemplate the long ago reach of James Madison across decades of American history... and shudder a bit.


Those who think the judiciary is functioning as it should may care to consider a rather amazing statement made by Richard Posner in his latest book, "Not a Suicide Pact: The Constitution in a Time of National Emergency". I am enjoying it greatly, or would be if I could stay awake at night long enough to get though more than a few pages at a time. It's riveting, mind you. I'm just exhausted by the end of the day and I get up at 4 am. But on to his statement:

It is natural to think that constitutional rights are rights stated in the text of the Constitution of the United States. But it is wrong, not completely but in an important sense. Constitutional rights are created mainly by the Supreme Court of the United States by "interpretation" of the constitutional text. I put the word in scare quotes because the line between judicial interpretation and judicial creation is frequently - particularly in the case of American constitutional law - fine to the point of invisibility.

This chapter ought to be required reading for anyone interested in con law. For one thing, it includes a priceless quote from Justice Jackson which will no doubt be familiar to the many law dogs amongst the half-vast readership, but was new to me:

Supreme Court justices are not final because they are infallible, but infallible because they are final.

Posner continues with an excellent discussion of how judges make decisions. What was invaluable about his analysis was that he argues (and I agree with his analysis) that it isn't conservative or liberal philosophy necessarily that determines judicial outcomes:

The justices' lack of democratic accountability makes them vulnerable to charges of judicial usurpation. To deflect these charges, the justices try to trace their innovations back to explicit directives in the constitutional text by a process called "reasoning by analogy". Wiretapping is not the same as rifling a person's desk, but it is analogous; prosecution for publishing a book that advocates revolution is analogous to a censor's refusing to license it's publication in the first place...Invariably there is a choice of analogies.

And therein lies the rub. Wiretapping could as easily have been compared to eavesdropping, which the founders did not consider to be something falling under the rubric of Fourth Amendment search and seizure laws. The choice of analogies matters.

In fact, it is everything. Posner continues:

The sheer multitude of alternative approaches to constitutional decision making and the interminability of the debates among their advocates are evidence that constitutional theory is deeply subjective, providing therefore no solid guidance to Supreme Court justices and so leaving them to make up constitutional law as they go along, in the usual way in which practical people make decisions : on the basis of anticipated consequences refracted through life experiences and other personal factors.


...When the Supreme Court in the name of the Constitution invalidates the act of another branch of government, it stifles a social experiment. By doing so, it deprives itself as well as the nation of critical information concerning the consequences of the experiment for liberty, privacy, safety, diversity, or other values. It is as if a scientist said: "Your hypothesis may be correct, but i don't like it, so I'm not going to test it." If judges are to learn the consequences of social policy, they must walk the executive and legislative branches of government on a long leash.

Now this power to make law has enormous implications in the arena of public policy. And if Judge Posner is right (and I believe he is) - if judges are actively creating rights on our behalf on the basis of reasoning by analogy rather than allowing the people to thrash out important matters for themselves subject to the give and take (and more importantly, the critical learning curve) which is part and parcel of the social experiment then they have once again arrogated unto themselves a truly sweeping power far beyond anything the Founders ever intended them to possess.

As Justice Jackson so trenchantly observed, Justices are infallible only because they are final. Yet no nine human beings ever born of Mary are infallible and the democratic process was meant to correct and adjust for such imperfections. Something has gone very much awry, here.


In addition to the problem of judges creating rights in the Constitution, add in the problem Grim identifies: the stunning erosion of federalism initiated by the 14th Amendment.

The core problem rises out of the adjustments we made to the original Constitutional order to address the problems of slavery and civil rights. The 14th Amendment transfered final authority on all such matters from the states to the federal courts. There was a good reason for this -- there were serious abuses that many states were simply not addressing. The creation of a way to appeal to a higher authority gave people a way to address these serious abuses.

The problem this creates, however, is that it undoes one of the core points of the Founders' design. The states were meant to be able to come to different settlements on social questions. From the earliest days of the Republic, we have been composed of many different kinds of people. The system achieved stability in part by allowing Puritan descendants in Boston to live one way, and the folks on Rhode Island (or "Rogue's Island," as the folks in Boston called it) to do things a different way.

If the Federal government is the arbiter of these social questions, it must mandate a single path as the "right" one. This exacerbates social tensions. Consider abortion: currently, pretty much any restriction of any kind on abortion is banned by the courts' reading of Federal law. Every place in America has to adhere to this single standard.

Now we have two unbelievably huge accretions of power to the judiciary:

1. Via Marbury vs. Madison, the ascendancy of SCOTUS as no longer one of three co-equal branches of government with equal power to interpret the meaning of the Constitution, but now the primary arbiter of Constitutional rights and interpretation, and

2. An enormous shift of lawmaking power from state to federal courts. Essentially, matters which once rested in the hands of the states are now decided by the federal courts. I often sardonically refer to this as The Federalization of Everything.


A little over a year ago I wrote a post called A Confused Judiciary, in which I argued for a return to a more restrained view of government:

It has struck me, over and over again this year, how few of our public servants have a restrained view of themselves. How few see themselves as, not parts of a working whole, but somehow as all being prime movers. It is as though they think they must take on all roles in the government; they are not content to perform the task assigned to them by the Constitution.

And so we get the Senate Minority Leader (who should know better) arguing that a Blue State Senator is "more representative", "more democratic" than a Red State Senator, when in fact the entire role of the Senate is to be a deliberative, restraining hand on the more passionate, democratic House of Representatives. But not to stop them from doing business entirely or to cut off ALL debate - as this filibuster business is doing. That is wrong and an abuse of taxpayer money. Senate rules should ensure that there is adequate debate - not prevent it entirely. That is fundamentally anti-democratic and anti-Constitutional, because it means that the people's representatives are not heard, whether it happens at the will of the majority OR the minority.

And we get judges, like Justice Breyer, and Justice O'Connor, who have somehow convinced themselves that their job is not merely to act as interpreters of the Constitution (in essence, traffic cops), but as a second legislature.

"Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further," he writes.

Rep. Tom Feeney, a Florida Republican on the House Judiciary Committee, offers an answer: "Nobody but a subjective, biased judge can determine what active liberty means." Mr. Feeney, who has been a leader among House Republicans seeking to restrain the judiciary, says a better title for Justice Breyer's approach would be "jurisprudential mysticism," since "he thinks he can somehow discern through a crystal ball or a Ouija board what active liberty should produce."

The best answer I can give to this, not being a lawyer, is a common-sense one: the Law of Unintended Consequences. We have seen a veritable explosion of law, rules, and regulations in this country. Like the tax code, our legal code has become impenetrable to the layman. Our federalist system really is no more: the encroachment of federal over state bureaucracy is all but final.

Each new decision becomes precendent for others, spawning a chain of telescoping and unforeseeable consequences that stretches as far as the eye can see. Anyone with even an ounce of sense can see this.

Given that this is so, does it not make eminent sense to do as I have seen John Roberts do, time and time again? Leave law-making up to the state and federal legislatures of this nation (as the Framers intended) and issue rulings that are as narrowly-focused as possible?

Though ascribed to Hippocrates, the familiar admonition: "First, do no harm...." is not in the Hippocratic Oath. But it is such good advice that any public servant would do well to take it to heart.

There is an old saying: "Too many cooks spoil the broth". To perform one's own appointed task, wisely and well, is no shame. Government works much better when there are checks and balances, when no branch overreaches and each arm functions within its appointed sphere.

Unfortunately we exist in an Age when respect for rules and hierarchy is at a low ebb. Everyone wants to be in charge and no one wants to be a team player. But some sense of structure is absolutely necessary in an organization as large and complex as the federal government. Even a body as small as the Supreme Court will not function well if some of the members believe they have somehow been given a charter that supercedes the original instructions laid out for them at the time they accepted their appointment. And it is a measure of our ignorance and how dysfunctional our society has become that those who argue for judicial constraint are being cast as extremists who threaten the future of democracy as we know it.

I believe that judges need to be immune to political pressure. The Framers were wise to provide for this. And unlike legislators, they need time to grow into their positions. Jurisprudence is not like other professions; one does not come to it in a week or six months, or even two years.

But I believe it may be time to consider term limits; perhaps ten years, or fifteen? Some period long enough to ensure permanence but short enough to allow for periodic performance reviews.

And though the dangers of politically based pressure are always present, that is not necessarily a reason for a profession not to hold itself accountable. When we see judges letting child molesters go scot-free time and time again, there is reason for concern. Perhaps there is room for internal review. Perhaps Congress should levy on the court system its own internal court of review when allegations are brought of misconduct. Arguably such a court would be subject to favorable bias and not prone to punitive action, but it would be better than no review at all, especially if answerable to Congress and the public.

Posted by Cassandra at October 12, 2006 05:38 AM


Federalism is long since dead. We really ought to just drop the "United States of" and simply go by "America."

Posted by: Daveg at October 12, 2006 11:30 AM

Geez, Cassandra, the more of these I read the more convinced I become that our government has become an Augean stable Hercules couldn't clean out.

The Powers That Be pretty much like things the way they are. I don't see peaceful change for the better happening any time soon.

The aftermath of a successful WMD attack on the US could be the straw that breaks the camel's back, and causes the majority of the survivors to reach for the reset button on the Constitution.

Posted by: Cannoneer No. 4 at October 12, 2006 11:46 AM

I hate to see that.

I think that America is going to collapse under its own weight if we do not restore some vestige of Federalism. We are seeing the same thing in software development. Several years ago software projects began to fail b/c the programs simply became too large and too complex to manage. The human mind could not handle all the complex variable at once: too many non-linearities to calculate - things get out of hand and entropy takes over.

The solution is simple: decomposition. Break down that large problem into several smaller problems. It is easier to manage 4 smaller projects than one monster project and then integrate them up at the end. People can deal with that.

The federal government is really no different. It makes no sense to think a behemoth central government can effectively manage the diffuse needs and wants of 50 vastly different states, all with differing demographic makeups and business and industrial needs. That is dumb. Let each local government address what they know best and which impact them on the local level.

Let the central government address those matters which affect us all.

Monopolies are wasteful and inefficient economically. No economist recommends you implement one, but the federal government is essentially a monopoly.

Posted by: Cassandra at October 12, 2006 11:53 AM

The more I read of these, the more I think, "What in the holy hell was THINKING when I decided to take this on???"

Dear Lord. Can you say, "Over your head, woman...."

Posted by: Cassandra at October 12, 2006 11:57 AM

I disagree with some of your conclusions.

1. Marbury was what the founding fathers intended. How could it not be, when the founding fathers (for example, John Marshall) were the ones who decided Marbury and Marbury was accepted by the others (Jefferson, Madison, Adams)? I would argue that the founding fathers always intended that the SCOTUS be the ultimate arbiter of constitutional questions.

2. I agree that federalism has eroded. The main cause of erosion is, as Grim writes, the 14th Amendment. Without it, the Bill of Rights would not apply to the states. Is the current state of affairs what the drafters of the 14th Amendment intended? I doubt it. But, it is what it is.

3. If we do not like what the 14th amendment does, we can repeal it and replace it with a more palatable version. In other words, don't place all the blame on the judiciary.

4. The shift of lawmaking powers, and policy in general, has continually shifted from the states to the federal government. Seismic shifts occurred in the 1900's with the creation of national parks and trustbusting; in the 1930s with the creation of the majority of the federal beaurocracy; and in the 1960s. These were all Article I and Article II initiatives.

5. There has been a great shift in criminal review and civil rights caused by the courts. The "blame" is squarely on Article III courts.

6. Personally, I think the federal government should back off. But, there is something to be said for the federal government telling the states that they cannot impose cruel and unusual punishment or that they have to abide by the Bill of Rights. Imagine, without this accretion, Kelo would not have had a cause of action.

Posted by: allan at October 12, 2006 11:58 AM

This is what a lawyer would call a 'nuanced' answer.

I think Marbury (as decided) may have been consistent with what the Framers intended. How else (as I observed) could they do their jobs?

The problem is that over time, things unravel and become expanded upon, or as they say in law, there is what you call a slippery slope. I think that is what has happened with Marbury. Judicial review has gotten somewhat out of hand. You will notice that nowhere did I suggest that the power of judicial review should be taken away. To me, that makes no sense.

I merely think that it is being abused, and furthermore, that it is misunderstood.

One possible solution would be a clear amendment to the Constitution that makes it crystal clear what powers the other two branches have in this regard. And Oh! what a tussle that would be!


Part of why I place the "blame" on the judiciary, allan, is that by constantly intervening and making law instead of referring matters back to the legislatures, they vent off some of the "pain" that would have caused We the People to amend the Constitution or pass laws to fix a lot of this stuff. That really, really frosts me. Because it *is* a usurpation.

Posted by: Cassandra at October 12, 2006 12:16 PM

It's interesting to follow the course of how the "law" has evolved with the nation. Legal history tracks through early riparian rights involving water powered mills,and then picks up speed through the eminent domain fights surrounding the building of the railroads. Later, those same railroads helped fashion modern tort law by running over cows and setting fires to farms and fields. The Commerce Clause flex its muscle in the stockyards and factories as the national market began to gel. Antitrust law bounced long held constitutional prinicples out the door, but somebody had to stand up for the "litle guy." As the flow of information increased, so did the scope of the First Amendment. But it really wasn't until the era of Substantive Due Process" came along in the first part of the 20th century that the Court really got the opportunity to tinker with society. What is surprising is that the post-Lochner Era has lasted so long without the expected correction.

What's even more depressing is the fact that Justice Kennedy is now the swing vote. Think of the power in that man's hands. Now think of that man and how badly he's muddled the law. Frightening.

Posted by: spd rdr at October 12, 2006 12:16 PM

Oh, and it's actually nice to have someone disagree with me.

I am not an attorney. I don't even play one on TV. So I'm happy to have people tell me I'm full of it, so long as they back it up with some reasonable explanation :p

Posted by: Cassandra at October 12, 2006 12:17 PM

Aiiiieeee!!!!! There you go waving the bloody shirt :p

I was going to bring up Lochner to make myself feel smart, but then I realized I really didn't know what the heck I was talking about so I decided to stick with bland generalities and hope you would say something stunningly smart. As usual you didn't let me down.

Anyways mr rdr, it was all worth it just to hear to say riparian.

*running away*

Posted by: Cassandra at October 12, 2006 12:22 PM

yes, it would be a tussle to tinker with the 14th amendment.

It would be interesting to see examples of rules that you think the Supreme Court has written that you do not like? And then, would you be able to find some rules that you do like? Finally, it would be interesting to see what would happen if we rolled back everything to what the rules would be, absent Marbury and absent applying the Bill of Rights to state actions.

There is something to be said for the states being supreme. But, I think that the shift toward federalism has enabled our country to be the sole superpower (militarilly and economically) in the world.

Do you really think we would be better off if states could establish religions, states could prohibit peacable assembly, states could abridge the free speech, states could engage in unreasonable searches and seizures, states could deprive people of property without due process, states could force self incrimination, states could deny the accused an attorney, and states could inflict cruel and unusual punishment?

I suspect that your issue is that the Article III courts are not interpreting the Bill of Rights as you would, not that their decisions are anti-federalist (lower case "f" intentional).

One other minor point. Without the power to interpret the Constitution and be the final arbiter, how do propose the Supreme Court assert its role as a co-equal interpreter of the Constitution?

Posted by: Allan at October 12, 2006 12:34 PM

I very much agree that the judiciary has greatly exceeded its assigned role under the Constitution, and that this has done and is continuing to do great damage to the Republic. I have to disagree, however, that it was an improper "power grab" for the Supreme Court to have asserted the right of judicial review. In Federalist No. 78, Hamilton wrote: "Whenever a particular statute contravenes the constitution it will be the duty of the judicial tribunals to adhere to the latter, and disregard the former." Without judicial review, the effective ability of the Congress to ignore the limits of the Constitution would have been unlimited.

But as you describe, the Supreme Court has been inventing rights and obligations that just aren't in the Constitution, and cannot be reasonably implied from it. The best approach, which is not a panacea, is to return to an "original meaning" approach to interpreting the Constitution. An excellent book on this subject is Roger Barnett's Restoring the Lost Constitution.

Using an originalist approach would also curb the expansionist constructions that have been applied to the 14th Amendment. Properly construed, the 14th Amendment does not federalize social issues.

Posted by: Tim K at October 12, 2006 12:47 PM

Kelo, for one. Justice Thomas' dissent on Kelo is a fair interpretation of my sentiments on that one. That decision makes no sense to me.

Also, I think you're exaggerating my position a bit. First of all, it is Grim's position that the 14th Amendment should be reversed, not mine. I'm not sure I've taken a position on it.

And I just said I didn't think Marbury should be reversed, so all of this:

Do you really think we would be better off if states could establish religions, states could prohibit peacable assembly, states could abridge the free speech, states could engage in unreasonable searches and seizures, states could deprive people of property without due process, states could force self incrimination, states could deny the accused an attorney, and states could inflict cruel and unusual punishment?

...doesn't logically follow from my post.

Now, to Tim's comment:

First, again, I think you may be conflating two things I expressed in my post.

I did characterize Marbury as a "power grab". However, I'm not sure I characterized it as "improper", because I said "how else could they do their jobs"?

I did say it had enormous impact beyond what Madison intended at the time. And I think that the practical impact of Marbury has been an expansion of judicial power that has gone too far and ought to be brought back within bounds, not reversed entirely.

But as you describe, the Supreme Court has been inventing rights and obligations that just aren't in the Constitution, and cannot be reasonably implied from it. The best approach, which is not a panacea, is to return to an "original meaning" approach to interpreting the Constitution.

I agree, within reason, but in many cases the original meaning of the Constitution isn't all that clear.

My last post is going to be on whether the Constitution itself ought to be amended. I believe we have made it too difficult to amend the Constitution and judicial activism itself has resulted in intervention which has, in effect "let off too much steam", venting the pressures which would inevitably have caused us to take action if the judiciary had stayed within their constitutionally appointed role.

Posted by: Cassandra at October 12, 2006 12:59 PM

- I tend to come to these discussions, feeling like its all an exercise in futility, since we see it done on a "backdrop", largely ignored and out of context. I refer to the IX and X, the "forgotten ammendments", which very succinctly spell out, in fairly clear language, the absolutes of whom has soveriegnty over whom. We diligently ignore them, arguebly for pragmatic reasons, but none the less we do. Careful reading will show that you are a citizen of your state first which has the only true voluable soveriegnty, the "union" next, as it pleases your state to remain a member of the federal "joining", and further that that Federal entity has only the soveriegnty we the people, and our states, grant to it. Furthermore, by universal agreement, we can take it back at any time. Even more specific, no law, not specifically spelled out, comes under the perview of the Fed.

- A Civil war, and several world wars later, the centralists have established a enterprise that seems less and less a coalition of "visiting representatives", and more a rambling behemouth that sets its own agenda, with little or no control by the electorate that established it in the first place. That very sort of perochial self-interest was one of the triple cornerstone worries of the framers in the whole panoply of framing, along with of all things, "special interests" (see the fedralist papers).

- Maybe thats all for the better in some practical ways. Maybe we really have no choice. Maybe diversions like the "living document" troupe is just some peoples way of dealing with the frustration of change, change we seem to be unable to bring ourselves to enforce. Possibly the original model needs revision, in tempo with the times. That just makes sense. But the role of the judicial has been politicized as another means to such change, in a way that would have appalled the framers, if you believe the things they said they wanted to protect the citizenry from.

Many other aspects of covert change can be sited. Not neccessary. The point is, will we ever deal with the need for review in a statesman like manner.

I'm not sure if the ideal of judges that see their role as totally objective, and without political bent, was ever actually achieved in our history, but certainly that was the original intent of the framers. As a practical matter, it would be inhuman to expect that would be the case 100% of the time. Liftime appointments were intended to free the judgeship from competition or carrot inticements. Unfortunately, those are not the only "sins" that drive the human spirit. I'm sure that the people that implemented some of the more "interest specific" decisions such as "Wade" and "Keno", do so from a feeling of "righteousness". the problem stems from "non-representation", the old meme of whose Ox is being gored.

- In short it has always been a puzzlement to me as to why we do not have an ongoing "Constitutional Congress", carryed on throughout the year, culminating in a final annual "signing", bringing together all our best minds in every professional walk of life.

- Too do as our nation has done, frame the Constitution, wash our hands of it and say "there, that's done....now we can all go pursue life, liberty, and the pursuit of happiness", seems naive, and intellectually lazy in the extreme. Maybe, that we haven't continued the work of that kernal idea of Democracy, is bringing us the governement we deserve.

Posted by: Big Bang Hunter at October 12, 2006 02:20 PM

You write:

At the level of SCOTUS, unelected judges are removing important public policy matters from all possibility of debate and effectively writing them into the Constitution, from whence there is no possibility of review or repeal, unless by those same unelected judges.

I wonder if you are right or not. There is something to be said for getting the court out of the business of deciding policy. On the other hand, I am firmly convinced that having the courts involved in social issues has benefited the nation.

The advantage of having the legislature decide matters is that we have a slow evolution. Revolutionary ideas cause problems. Better to let them stew until their time is ripe.

Look at how well it worked for abolishing slavery and the Jim Crow laws. Did pretty good for granting women the right to vote, too (undoubtedly, today the courts would find not allowing women the right to vote is unconstitutional).

On the other hand, Roe v. Wade kind of divided the nation more than it had been.

How we handle the establishment clause of the first amendment is a very sticky issue, too. I wonder how you would feel about it if a Jewish or Muslim community were to ban you from displaying a cross at a public ceremony where other religous displays were allowed.

Posted by: Allan at October 12, 2006 02:27 PM

"Unlike the other branches, the Judiciary does not appear to be corrupt."

Must never have studied quantum meruit in Contracts. Talk about twisting the law to come up with the solution you desire.

Posted by: sharon at October 12, 2006 02:51 PM

But Allan, you are, IMO, engaging in ends-based reasoning.

My take, on the otter heiny, is that we are first and foremost a nation of laws, not men.

The Constitution gave us a bundle of rights (stop me if you've heard this one). Not a lot of them, but they can't be taken away. The states may add to those rights if they choose to. Great.

Don't like it? Move to another state or agitate to get your state to grant you more rights. Or agitate on the federal level to amend the Constitution. This is the political process. Convince your fellow citizens your way is better.

But I am not firmly convinced nine men (or seven men and two women) can or should take those matters forever out of the public realm. It is not a matter of whether those decisions should be made, but who should make them and whether they should be reviewable. When SCOTUS does it, they aren't debatable or reviewable by mere mortals like us.

I'm not quite sure what you're talking about with granting women the right to vote What the heck does that have to do with judicial activism?

That was the 19th amendment, perfectly in concert with the original intent of the Constitution. It was proposed by Congress and ratified by the states. Democracy in action. Also the 13th amendment ending slavery was ratified by the states - again, nothing to do with SCOTUS or judicial overreaching.

Now Roe v. Wade is a different matter entirely. And re; this:

I wonder how you would feel about it if a Jewish or Muslim community were to ban you from displaying a cross at a public ceremony where other religous displays were allowed.

Well I wouldn't like it, but then I don't go around petitioning ANY community to force them to display my religious symbols.

It just would never occur to me in a million years, you see. Why would it? Most often people who want this stuff are trying to crank one up. When was the last time you sued a municipality because they wouldn't display your baseball team, your religious symbol, your favorite brand of ice cream? Give me a freaking break. I get really, seriously tired of the agony aunts of this world suing people because they don't feel personally validated by some blow up plastic baby Jesus or Buddha or Muhammed or freaking Mickey Mouse. Get. A. Life.

Hint: it's not about you.

It's about me. :)

I'm so glad we got that straight....heh.

Posted by: Cassandra at October 12, 2006 02:53 PM

Allan, the fact of Judicial policy making, legislating from the bench, has at times been forced on the system, largely stemming from a recalcitrant Legislature, or Executive. We're probly fortunate as a nation, underlined by the cases you site and other benefitial tort, that we have that pressure valve release. The problem comes when that becomes the norm, rather than the exception.

Posted by: Big Bang Hunter at October 12, 2006 02:53 PM

Well sharon, neither Grim nor I are attorneys, so we probably have view the judiciary with less hairy eyeball :)

Posted by: Cassandra at October 12, 2006 03:06 PM

Cassandra, another outstanding read. But as a Point Of Spelling and Therefore Definition: Did you mean to give a left handed compliment to the
SCOTUS by the word 'arrogating' or did you mean to point out their rapacious grab for interpretive ability by the use of the word 'abrogate?'

The VC readership does wonder, it does...and wonders if 'arrogate' will be added to the VC Lexicon.

Posted by: Cricket at October 12, 2006 05:01 PM

Big Bang Hunter:

I will come back to your 'penultimate' comment (dang...always wanted to use that word) when I do my Constitution post.

I agree. I don't know why this nation doesn't do a Constitutional Convention. Every 40-50 years is probably about right. Too often and you get change for change's sake. Too far apart and everyone is dead who was around for the last iteration.

It should be done, and it probably takes a good 5 years to prepare.

Posted by: Cassandra at October 12, 2006 05:03 PM

Yanno, I really have no idea.

I have been so completely tired this week I may well be making up words Cricket. I was laughing earlier at spd's 'riparian'.

Nope! It's a word, though as it turns out I don't think I should have used that precise word. It probably was too strong for the context (Freudian slip, there... heh). I meant to seize, but I'm not sure "without justification" was entirely "justified" in this context:

One entry found for arrogate.
Main Entry: ar·ro·gate
Pronunciation: -"gAt
Function: transitive verb
Inflected Form(s): -gat·ed; -gat·ing
Etymology: Latin arrogatus, past participle of arrogare, from ad- + rogare to ask -- more at RIGHT
1 a : to claim or seize without justification b : to make undue claims to having : ASSUME
2 : to claim on behalf of another : ASCRIBE
- ar·ro·ga·tion /"er-&-'gA-sh&n, "a-r&-/ noun



I am going to go soak my curly little head now.


Posted by: Cassandra at October 12, 2006 05:08 PM

Now now little trooper.... For every "arrogate" there's a "penultimate" out there somewhere, in all it's splendor, just waiting to be used in a proficious manner. Now if I could just spell.

Posted by: Big Bang Hunter at October 12, 2006 05:34 PM

Well, the Virgo in me does come out from time to time, though I was thinking more along the lines of 'arrogance' than arrogate. It still fit, and while it might have been a Freudian slip on your part, it sure as helk describes why we look to the judiciary to determine where Wal Mart will go, who can have abortions on demand and who promotes the general welfare.


Posted by: Cricket at October 12, 2006 05:44 PM

Arrogance and arrogate are cognates. The use of the word was perfectly appropriate. Indeed, in the context, it's just what I would have said myself.

Posted by: Grim at October 12, 2006 06:26 PM

Can you say cognates on a blog?

Posted by: Emily Litella at October 12, 2006 06:53 PM

Cassandra: great commentary here, but I must take umbrage with one of your statements:

"The Constitution gave us a bundle of rights (stop me if you've heard this one). Not a lot of them, but they can't be taken away. The states may add to those rights if they choose to. Great"

Your rights do not come from the Constitution: they come from God (or, in a secular sense, your rights are innately yours). The government does not 'grant' you your rights. It protects them. The Constitution, if I recall my Con Law days of many moons (and beers) ago is a contract between the governed and the government.

Also, as a minor point, what was the life expectancy of folks back in the late 18th century compared to now? Did our Founding Fathers envision Supreme Court justices serving 40+ years? I doubt it, so I'm all in favor of terms (say 20 years) with standing justices eligible for reappointment. But they still have to go through the approval process.

Posted by: Blackhawk at October 12, 2006 08:22 PM

As a believer in natural rights, I'll buy off on that Blackhawk. I just didn't want to go down that particular rabbit hole here :)

Posted by: Cassandra at October 12, 2006 08:32 PM

That's a great point about life expectancy - hadn't thought of that.

Posted by: Cassandra at October 12, 2006 08:33 PM

Come to think of it, I'm crushed on reading this over (finally, and way too late) for typos to see that my body-slam against the Weird Sisters (O'Connor/Ginsburg) got lost somewhere in the update cycle.


Posted by: Cassandra at October 12, 2006 08:36 PM

After all of this, I have a couple of questions.

1. Should social issues be the bastion of only the states, or should the federal government get involved?

2. If the federal government has a role in deciding social issues, does the Constitution allow the Article III courts to decide social issues, or is that subject left to Congress?

3. If the courts have a role in deciding social issues, how should one determine what issues they decide? In other words, is it OK for the courts to outlaw legalizing marijuana in the states, but not OK for it to permit gay marriage? If so, why?

These are difficult questions, which I believe have been around since the founding of the country. Indeed, John Calhoun would have answered the first question in the negative and it would have stopped there.

Posted by: Allan at October 12, 2006 08:58 PM

"Should social issues be the bastion of only the states, or should the federal government get involved?"

- From my prospective those actions are not mtually exclusive. Any and all decisions of the SCOTUS is, by writ, under the conscription of the states. No, classically we do not exercize that power. But it's there. The states, as a body, can ask for an arbitration decision, which is exactly what happens in effect, everytime the SCOTUS rules on anything. It may be so removed in practical terms as to be invisable, but no matter what path it takes to get there, thats still the case.

The pactical answer is much different of course, but I'm a hardline traditionalist, so I always try to remind of the true situation, as opposed to the political reality. I'm convinced that it helps the process, even if its ill-applied.

Posted by: Big Bang Hunter at October 12, 2006 09:15 PM

What "social issues" Allan.

That's an incredibly broad question. It should be a question of scope. In general I'd have to say let them rest with the state unless there is some arguable national interest. But if the nation wants to create a right arising in the Constitution, let them amend it.

As I said earlier, the Founders created a federal system where the states determined, on a local level, how people were going to live and the federal goverment for the most part stayed the heck out of your life.

I actually have a bit of an issue with what you describe in two, but it's the vehicle they chose - the Commerce Clause of all freaking things. Marijuana IS NOT COMMERCE. It's freaking illegal.

If we want to regulate it at the federal level, then let's admit that and go in that way. But don't back-door it with some bastardized Commerce Clause argument that won't hold water intellectually. My man Clarence Thomas was so right on that one. That's why I love him.

Posted by: Cassandra at October 12, 2006 09:15 PM

I think the answer is, "No, exceptis excipiendis." In general, that is, the Federal government should not be involved in the resolution of social issues.

On the other hand, there may occasionally arise issues of such moment that a national solution is the only option. Anything other than a common agreement, in such cases, would destroy the Union: in other words, I am speaking of cases in which "A house divided against itself cannot stand."

I think slavery and its consequences were such an issue. That's what the tools were designed to combat.

However, I think those same tools have proven too strong for the lesser issues of society. Slavery was a great evil, powerfully embedded at the root of the nation's founding. Its racial nature made it easy to pursue in an informal form, Jim Crow, after legal slavery had been banned.

There really is nothing else that is comparable. Today, we are beset by no issue that is of such fundamental importance, power, or resistance to regular law.

It may be that another such issue will arise at some point in the future, perhaps due to changes in technologies. In such cases, a new set of Constitutional amendments might give the courts and/or Congress authority to handle those cases and issues around them.

However, I think that today we have a set of tools designed to crack mountains -- and they are being applied to trying to straighten picture frames. The risk in using tools of that power on tasks of so small a magnitude is obvious. You risk not merely failure in the attempted problem, but the destruction of the whole house that surrounds it.

Posted by: Grim at October 12, 2006 09:22 PM

grim, I'm chuckling here... many moons ago my prof used the phrase "thumb-tacks with sledge hammers"....good to know the sane views are still taught in todays bastions of non-reality.....

Posted by: Big Bang Hunter at October 12, 2006 09:36 PM

By the way, Cassandra, thanks for hosting this discussion.

Posted by: Allan at October 12, 2006 09:51 PM

Allan, I get way more out of this than any of you do, I think.

Thank you for reading and taking the time to share your thoughts. Blogging is a collaborative venture - we wouldn't get far without readers :) I appreciate the chance to bounce my half-formed ideas against such a smart audience.

Posted by: Cassandra at October 12, 2006 10:18 PM

"...good to know the sane views are still taught in todays bastions of non-reality..."

I wouldn't know if they are still taught, Hunter. Nobody ever taught it to me. Some things, though, a man can see for himself if he looks long enough.

"I get way more out of this than any of you do, I think."

I might be the sole exception to that. I was greatly pleased to see you'd taken up this business at length. The discussion has been worth a lot to me, too.

So, thanks -- as Allan said.

Posted by: Grim at October 12, 2006 10:46 PM

- True enough grim....provided he happens to be looking in the right places and has time enough to look.....

Posted by: Big Bang Hunter at October 12, 2006 11:41 PM

...and let me add my thanks for the topic Cassandra.....Honest debate, and just intellectually "kickig it" is one of the great attractions of the blog forum....

Posted by: Big Bang Hunter at October 12, 2006 11:46 PM

I generally agree with much of what's been said but think it important to go a bit further down the natural law "rabbit hole." A large part of what we have inherited was based upon assumptions that most people no longer hold. The Constitution has survived in spite of that fact because it is primarily constitutive in nature, i.e., mainly dividing governing powers: between the states and the federation, and among the branches of the federal government.

The "abuse" of the Constitution has occurred primarily in the areas in which it attempted to go beyond that role to define and protect inalienable rights from governmental interference. In doing so, one might be able to say that much "good" has occurred, because many "evil" or "well"-intentioned but "badly" conceived government schemes have been taken-off the political table by the judiciary. (In my view, Marbury v. Madison was inevitable and is inevitable anytime a constitutional court is established.)

What must be remembered is that the Framers of the Constitution had very similar ideas of what individual rights exist based on 700 years of English legal history and the conviction that such rights are not created by government, least of all by judges, but, at most, discovered by them. And judges held the same understanding of the law.

Times changed. Over the course of the 19th and 20th centuries, most legal scholars (and judges) abandoned the idea that law exists outside rules imposed, by whatever means, by human beings. The manifestation of this phenomena has appeared in all three branches of government, at the federal state and local levels, as well as internationally, in different ways. We've seen a huge amount of legislation replacing long held common law and equitable priniples, we've seen an explosion of regulation that the legislature has never read much less affirmatively approved but which nonetheless enjoys force of law.

In the judiciary, we've seen "progressive" judges making law based on policy preferences hidden (intentionally or not) behind analogies and principles that do not follow the common law (which had been the effort of a society seeking to discover natural law), but which instead seek anticipate, for lack of better words, the "way society is moving." The resulting rules remain legislature-proof to the extent they purport to say what the Constitutional law is.

What I'm trying to say is that Article III of the Constitution was set-up on an ancient legal terrain that it did not seek to replace but it was believed would informed its meaning. That terrain is less and less the basis upon which the Constitution now stands. The underlying common law rug has been pulled out from under it. To switch metaphors, what we have now is an uncoordinated array of perspectives fueling a superlegislative machine that was designed for one only one kind of fuel, and the result is legal incoherence and political abuse.

To the extent that's a problem, I don't see an easy way of fixing it. We are a diverse society. The best we can do is try to agree on some common sets of values (hopefully by persuasion) and, as we come to agreement, amend the constitution accordingly. The trends, however, seem point in other directions to me. We are becoming more, not less diverse, and natural law does not appear to be making a come-back.

Posted by: ricg at October 13, 2006 09:15 AM

I have enjoyed your series on the military, the Congress and the judicial system. I wonder what you think of making the Supreme Court decision depend upon a supermajority of votes, say 7-2 rather than 5-4. It seems to me if 4 highly respected, learned judges don't think their compatriots are right, it is a very good case that they are not right.

Posted by: Don Wilkins at October 13, 2006 08:39 PM

Seems to me that you were warned by not only myself, but several other posters (and not the paper kind) that inviting the Half Vast readership to *help* catch those grammatical mistakes could be dangerous. I was about to mention several such mistakes (when I was finished reading all the posts) when I came to this:



I am going to go soak my curly little head now.


Posted by: Cassandra at October 12, 2006 05:08 PM"

Remember those infamous words: "Be careful what you wish for, you just may get it."

Posted by: Sly2017 at October 15, 2006 04:26 AM

I know, but I was just teasing them, Sly :) Cricket and spd have known me for a looooooooooong time, so I figured they'd get that I was just messing with them.

And I don't mind - I caught myself misspelling "impugnity" (heh) again the other day - thanks to camo. So it's all good. I really would rather know and be able to fix it. Doesn't mean I won't tease a bit. But I would rather know.

Posted by: Cassandra at October 15, 2006 07:46 AM

"Essentially the Court was arrogating enormous power to itself. This was not necessarily unreasonable, but Marbury had a multiplicative effect that its makers could not possibly have foreseen at the time"

I think John Marshall knew exactly what he was doing. Also, that he wasn't so much arrogating as he was doing what was natural. How else is the court to decide if something is constitutional?

Posted by: actus at October 16, 2006 08:44 AM

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