View Full Version : Scalia's Originalism versus Breyer's Pragmatism
Kanamori
07-31-2005, 22:12
Which is better? Please explain why as well.
discovery1
07-31-2005, 22:18
Explain please? I'm guessing it has something to do with the supreme court.
Crazed Rabbit
07-31-2005, 22:27
Scalia, of course. If you go with Breyer you might as well not write a constitution in the first place and just let justices rule over our country.
Judges are supposed to rule on the law, not their opinions.
Crazed Rabbit
discovery1
07-31-2005, 22:52
Ok. I understand now. Close interpretation vs living doc
Sculia, at least after the em domain fiasco
Scalia, of course. If you go with Breyer you might as well not write a constitution in the first place and just let justices rule over our country.
Judges are supposed to rule on the law, not their opinions.
Crazed Rabbit
What he said. ~D
Divinus Arma
08-01-2005, 01:44
Breyer is the devil. I wrote the constitution. Yaarrgghhh!!!!
Kanamori
08-01-2005, 01:51
Close interpretation vs living doc
It is more specific than that. Breyer is generally concered with coherency and continuity in the law, and he has a pragmatic style by ruling what he thinks will continue the law, unless directly opposed by an appropriate law, and create or maintain coherency. Scalia strictly interprets the text, and where there is a fuzzy area, he uses the texts original meaning. As I understand it, Scalia's originalism is different from Thomas's in that Thomas wonders first, "What did they mean?" before he gets down and dirty with the grammar.
If you go with Breyer you might as well not write a constitution in the first place and just let justices rule over our country.
Breyer is not concerned with imposing his beliefs, rather he is concerned with continuency and coherency. Without a base, his style has no purpose.
In order to follow both of their methods, they must make a judgement call which is not theirs to make. So, in this sense, the slippery slope would apply to Scalia as well. His method tries to eliminate as many places for personal moral judgement as possible; Breyer's method tries to eliminate moral judgement, but it is actively using personal judgement for those ends.
Gawain of Orkeny
08-01-2005, 04:43
Breyer is not concerned with imposing his beliefs, rather he is concerned with continuency and coherency. Without a base, his style has no purpose.
In other words hes for the slow liberal deterioration of the constitution weve been witneissing for the last 40 years or so. As the wicked witch of the west said "These things must be done delicately, deeeelicately. "
Sasaki Kojiro
08-01-2005, 05:13
I don't care whether they are original or pragmatic as long as they make decisions I agree with.
Gawain of Orkeny
08-01-2005, 05:14
I don't care whether they are original or pragmatic as long as they make decisions I agree with.
Refreshing honesty even if misguided. ~:)
bmolsson
08-01-2005, 05:47
Sorry... No clue...
Kanamori
08-01-2005, 07:13
In other words hes for the slow liberal deterioration of the constitution weve been witneissing for the last 40 years or so. As the wicked witch of the west said "These things must be done delicately, deeeelicately. "
In a sense, yes. But it is simplifying things to their results, in a pragmatic sort of way ~;)
Arguing pragmatism is focused on coherency seems strained as pragmatism is tied to the notion 'what works' while coherency requires a systemic consistency.
Assuming Breyer's view is as you describe: pragmatism suggests an end that determines and validates a prior action or decision made. This is logically problematic as the full consequences (the end) cannot be known prior to the decision.
Now if his position is simply structural: a coherency schema and not concerned with the impact of any ruling a couple questions arise. Why is coherence given this priority and what justifies it? Why does coherence trump calls for justice? What Judicial charge allows this approach to law?
Kanamori
08-02-2005, 04:01
Arguing pragmatism is focused on coherency seems strained as pragmatism is tied to the notion 'what works' while coherency requires a systemic consistency.
His means are pragmatic -- i.e., the 'what works' is the coherency he intends to make out of a seemingly incoherent jumble -- and the end his means are striving for a consistent coherency. That is not to say that his means are coherent, though, and in this sense, I disagree with his style.
Assuming Breyer's view is as you describe: pragmatism suggests an end that determines and validates a prior action or decision made. This is logically problematic as the full consequences (the end) cannot be known prior to the decision.
Essentially, I agree. As I understand it, over time, the Supreme Court has made the ideas in the Constitution more specific, and, almost without a doubt, such specifications will eventually cause a conflict, as they have. And, as I understand it, Breyer's jursprudence is meant to resolve those conflicts so that the law is consistent in its ideas, generally, favoring the trend or direction of the momentum of rulings in the past. I find how much personal judgement his method requires worrysome.
Why is coherence given this priority and what justifies it? Why does coherence trump calls for justice? What Judicial charge allows this approach to law?
Excellent questions that I feel are the very center of this discussion and it is the direction I hoped the thread would go. (Here, I am claiming very little. I am looking for ideas and their justifications in this area: a sort of place to collaborate or bounce ideas.)
1. Why does coherence trump calls for justice?
First of all, what is justice? To me, coherency in law, at least sometimes -- I've got a rift or conflicts inside my definition -- is naturally just. Justice requires fair and impartial treatment of persons especially in a legal setting but also in any sort of systemic social model of treatment. So far, any area of law that is not coherent, i.e. different meanings in the same area allowing for different treatment of individuals, is unjust. But, I believe there is an obvious bit of morality in what is considered just or unjust. Is the death penalty morally unjust, and, no matter what the law says, unjust in a larger sense? Obviously this implies a moral law superior to that of the established government. Our constitution eludes to this in the declaration "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So, how do we determine those "certain rights"? Because of that uncertainty, I believe coherence for coherency's sake comes first in those cases. Coherence in favor of the obvious rights should take precedence, duh, but I can think of no reliable way to discern between which takes precedence in cases where it is not directly said.
2. Why is coherence given this priority and what justifies it?
In the absence of an obvious right (i.e. declared directly), I think coherence for coherency's sake should take priority.
3. What Judicial charge allows this approach to law?
None that are legally legitimate. There is no legal basis for the power they hold, and the area was largely untouched, or I may be lacking and understanding of their time period and what they may have considered common sense or implied. That is why I believe the area is in dire need of reform.
Master Kanamori,
I am going to define terms and then address a few issues. Where we already have a determined subject of study (jurisprudence) pragmatism and coherency are epistemic schema. This means they are both concerned with knowing justice and how it may be worked out. Now the difficulties of a pragmatic model I have mentioned already. This has conceptual and practical impact. For example if in the pursuit of a just society a Court decides forced busing is the answer to redressing previous discriminatory practice: it is not possible to foresee all the consequences of that decision. This is conceptually prohibitive. On a practical level: there could be increased racial tension, or white flight, or financial strains or a drop in overall education quality etc. If some of these consequences did in fact occur then new 'evils' have arisen to challenge the legitimacy of the ruling. This impacts the 'cash value' of the decision. This inability to see effects eliminates pragmatism as a source for judicial knowledge.
A coherency model is not concerned with impact but internal consistency. Mathematics is a simple example: whether the number four actually exists is not a factor. Now if coherency is the judicial standard then again using the forced busing example: if riots, death and mayhem were the result proponents would not be concerned as their justification is based on finding accord with previous dicta. If justice is considered with more than lining up rulings void of tension then this approach fails.
The two approaches are distinct.
Now I noted a deference for coherency in the law from your post. I take this to mean a system to establish equity and consistency. You may be interested to know that a systemic approach to law was not the standard in the Western Tradition. Roman law (ius civile) is the basis for what followed in the West and it operated along different lines. The Roman approach was problem centered and looked to topics (topoi) to solve them. If an issue arose the ruling was designed to deal with that case. The method was to appeal to a variety of tropes that could then be used to resolve the matter. Common Law and our own case law tradition mirror this in many ways. That Breyer should seek a new formulae indicates his variance from our legal tradition.
Now while I have made a few comments I think the real issue that concerns Breyers's method is this:
3. What Judicial charge allows this approach to law?
None that are legally legitimate. There is no legal basis for the power they hold, and the area was largely untouched, or I may be lacking and understanding of their time period and what they may have considered common sense or implied. That is why I believe the area is in dire need of reform.
If a judge has no authority to act in a certain way then anything that should follow from that deviation is baseless.
Much of the Judicial bog we find ourselves in is precisely due to Judges overstepping their bounds. Judges have no authority to create law or order outside the courtroom. To go back to the busing example: if there is educational discrimination then it is up to the legislature to solve the issue. If that means busing so be it. The Legislature, unlike appointed judges, can error and make redress precisely because they exist only at the behest of the people. The principle of popular sovereignty is the sole basis for legitimacy.
Kanamori
08-02-2005, 23:00
I see. And if the legislature does not act for minor (minor meaning cases not involving the constitution but cases that still may have large consequences) inconsistencies?
The Legislature, unlike appointed judges, can error and make redress precisely because they exist only at the behest of the people. The principle of popular sovereignty is the sole basis for legitimacy.
So, the constitution is more like the British one: simply there for guidlines? Obviously, we agree that our Judges are improper for the job, but I believe the job they've taken is necessary.
I see. And if the legislature does not act for minor (minor meaning cases not involving the constitution but cases that still may have large consequences) inconsistencies?
If the legislature does not act then they will either be punished by the electorate or justified by the same.
So, the constitution is more like the British one: simply there for guidlines? Obviously, we agree that our Judges are improper for the job, but I believe the job they've taken is necessary.
No, the U.S. Constitution serves as the formal basis of U.S. law. The British model has no such standard. The U.S. Constitution became that standard through a majoritarian process as did all Amendments to it.
If you believe Judicial usurpation of legislative prerogative is improper but necessary then you definitely have a strained position. I believe in democracy and therefore accept majoritarianism as the natural process by which people should be governed. When anti-majoritarian processes supplant that basic structure civil tension is the natural result. The simplest and best example is Roe v Wade: the Dred Scott decision of the Twentieth Century.
Kanamori
08-03-2005, 04:31
If the legislature does not act then they will either be punished by the electorate or justified by the same.
If the majority or "most" favored the legislature doing something that was unconstitutional, I cannot see how the legislature would be punished significantly by that same majority or "most". Suggesting that such an action would be justified by the majority or "most", because they agree with the action ignores the fact that there is an Amendment process that requires more than a simple majority. Indeed, the fact that the "most" can have their way in a system as ours seems to threaten your post, no pun intended, even more.
No, the U.S. Constitution serves as the formal basis of U.S. law. The British model has no such standard.
If the only thing standing in the way of the legislatue is fear or popular reprisal, then the only difference I can see is that ours is written on a piece of paper that can be burned.
If you believe Judicial usurpation of legislative prerogative is improper but necessary then you definitely have a strained position.
If that were what I believed, then yes, by all means, my position would be strained. But, that is hardly what I believe; I believe there must be some formal element that has a final say as to what the constitution says, otherwise, we have a problem with an entirely free legislature. I think that element should reflect our system of government: it should include both favor to the minority or individual and favor to the majority. The latter is the most important, but it should certainly not be the only bit of favor in said element.
I believe in democracy and therefore accept majoritarianism as the natural process by which people should be governed.
I believe in strongly democratic elements to a government, but I also believe that people are imperfect.
~:cheers:
If the majority or "most" favored the legislature doing something that was unconstitutional, I cannot see how the legislature would be punished significantly by that same majority or "most".
You stated earlier: "And if the legislature does not act for minor (minor meaning cases not involving the constitution but cases that still may have large consequences) inconsistencies?" I took "not involving the Constitution" as meaning law within the bounds of the Constitution. If a majority acts in an extra-Constitutional fashion then it is by definition acting outside of legal mandate.
Suggesting that such an action would be justified by the majority or "most", because they agree with the action ignores the fact that there is an Amendment process that requires more than a simple majority. Indeed, the fact that the "most" can have their way in a system as ours seems to threaten your post, no pun intended, even more.
A simple majority and a super majority are both majorities and therefore operate under the principle previously mentioned.
No, the U.S. Constitution serves as the formal basis of U.S. law. The British model has no such standard.
If the only thing standing in the way of the legislatue is fear or popular reprisal, then the only difference I can see is that ours is written on a piece of paper that can be burned.
I don't understand this reply. Constitutional democracy means a formal legal basis has been determined and all subsequent law is bound accordingly. The British system does not have this.
If you are questioning the basis of law then: in a secular society law is by definition a construct whose force only extends to the degree those who would be bound by it recognize that force. A sociopath would be a simple example of one who has moved outside that parameter.
If that were what I believed, then yes, by all means, my position would be strained. But, that is hardly what I believe; I believe there must be some formal element that has a final say as to what the constitution says, otherwise, we have a problem with an entirely free legislature. I think that element should reflect our system of government: it should include both favor to the minority or individual and favor to the majority. The latter is the most important, but it should certainly not be the only bit of favor in said element.
You stated: "we agree that our Judges are improper for the job, but I believe the job they've taken is necessary." This sounded like a justification of the Judicial usurpation I pointed to.
Now believing there should be a formal element (i.e. The Supreme Court "SC") that has final say is interesting. It is interesting because it is extra-Constitutional. It is also interesting because, if I have understood you correctly, it suggests (as in the case of the 9 on the SC) an autocratic basis to a democratic process.
I believe that the final say should, and in fact does reside, with the people. If a legislature oversteps its bounds then the people should pressure that legislature for redress. It is dangerous when a society, instead of involving itself in the decision making process, awaits the pronouncement of a few unelected black robes to decide the basic course of there lives. Abortion is a perfect example: the issues of personal liberty and right to life both appeal to core principles of the Republic. The Constitution is silent on the issue of abortion. It therefore falls to the people to work out a decision which would then be justified insofar as it maintains majority support. The present reality is its own refutation.
I believe in strongly democratic elements to a government, but I also believe that people are imperfect.
People are imperfect (mostly Democrats ~;) ) but notions of government and justice are particular concerns of people. It should therefore be left to the people (and not a person or persons) to work through their imperfections.
Kanamori
08-04-2005, 22:15
You stated earlier: "And if the legislature does not act for minor (minor meaning cases not involving the constitution but cases that still may have large consequences) inconsistencies?" I took "not involving the Constitution" as meaning law within the bounds of the Constitution. If a majority acts in an extra-Constitutional fashion then it is by definition acting outside of legal mandate.
Hehe, I do not know how to approach this quagmire well. You assume the status quo as the constitution that does not directly recognize an authority whose job it is to have the final absolute objective view of the Constitution. As such, there is very little action supported by the majority that could ever be considered "extra-constitutional". My view is as follows: unless there is a final authority distinct from the legislature, our legislature is free to pass any law the majority wishes, without fear of reprisal. I am implying that the statements in our Constitution are fixed, knowable, and unchanging unless the amendment process is used. If they can pass any law, and the Constitution is a fixed set of mandates, they can act unconstitutionally. My view is simalar to the dreaded Marshall, but it is also different in a few very important ways. I do not believe that some authority should be institutionalized without using the Amendment process, because the said authority would be extra-constitutional, illegal, and a disgrace to the idea our government was founded on. I do not believe that the SC should be that authority. Neither the people passing law, nor those passing Judgement ought to be that final authority for our Constitution. And, that authority should not be set up without using the Amendment process, because that authority is not asked for in the Constitution.
Constitutional democracy means a formal legal basis has been determined and all subsequent law is bound accordingly. The British system does not have this.
These statements are all true. They, however, do not lead to the Conclusion that your model has different results from the British system. The legislaters in your model are only bound by their sincerity and the accuracy of their interpretation. That is to say, their interpretations of the Constitution may not be what it actually says, and they have no real motivation besides an appeal to tradition to keep their interpretations stricter than they could otherwise be.
If you are questioning the basis of law then: in a secular society law is by definition a construct whose force only extends to the degree those who would be bound by it recognize that force.
The Constitution was voted on and ratified by the people. It is omnipotent in what it says among us. The Constitution is binding, and the Civil War will attest to that.
Now believing there should be a formal element (i.e. The Supreme Court "SC") that has final say is interesting. It is interesting because it is extra-Constitutional. It is also interesting because, if I have understood you correctly, it suggests (as in the case of the 9 on the SC) an autocratic basis to a democratic process.
Believing that there should be a formal element is not extra-Constitutional. That element existing without permission is extra-Constitutional. I propose an Amendment to create that element separate and different from the SC and from the Legislature. After all, we amended our constitution, so that we could directly elect our Senators.
I believe that the final say should, and in fact does reside, with the people. If a legislature oversteps its bounds then the people should pressure that legislature for redress.
We are bound by the Constitution. What you suggest is Anarchy.
It is dangerous when a society, instead of involving itself in the decision making process, awaits the pronouncement of a few unelected black robes to decide the basic course of there lives.
I totally agree with this statement. That is why I do not suggest that the element should not have ties with the people, but that they also have a strong motivation to interpret honestly. It is incorrect, I believe, to say that the Legislature and the people are entirely the same.
People are imperfect (mostly Democrats ) but notions of government and justice are particular concerns of people. It should therefore be left to the people (and not a person or persons) to work through their imperfections.
Agreed ~:)
Lol, I just picked up on your abbreviation and its intention. Post changed accordingly. ~:cool:
Gawain of Orkeny
08-04-2005, 22:23
I do not believe that some authority should be institutionalized without using the Amendment process, because the said authority would be extra-constitutional, illegal, and a disgrace to the idea our government was founded on. I do not believe that the Supreme Court should be that authority. Neither the people passing law, nor those passing Judgement ought to be that final authority for our Constitution. And, that authority should not be set up without using the Amendment process, because that authority is not asked for in the Constitution.
Your confusing me here. You say we need a final arbitrator on whats constitutional and then say " I do not believe that the Supreme Court should be that authority" Thats what Pindar is saying. So who should be the final arbitrator. I can tell its the people. The whole of US democracy is based on We the people. You make all these statements and then here say exactly what we do. :help:
Kanamori
08-04-2005, 22:32
There is a distinction. I am not a Political Mastermind, I do not know the best way to make that final arbiter, but i do know that it should be neither the SC, nor the Legislature. I favor some hybridization of elements favoring the majority and the minority with a stronger prescence of the earlier.
Gawain of Orkeny
08-04-2005, 23:41
There is a distinction. I am not a Political Mastermind, I do not know the best way to make that final arbiter, but i do know that it should be neither the SC, nor the Legislature. I favor some hybridization of elements favoring the majority and the minority with a stronger prescence of the earlier.
Again I suggest you read the constitution . Its all there in black and white. Its called checks and balances and they are quite defined. That is until the court usurped this power.
GodsPetMonkey
08-05-2005, 04:52
Now I noted a deference for coherency in the law from your post. I take this to mean a system to establish equity and consistency. You may be interested to know that a systemic approach to law was not the standard in the Western Tradition. Roman law (ius civile) is the basis for what followed in the West and it operated along different lines. The Roman approach was problem centered and looked to topics (topoi) to solve them. If an issue arose the ruling was designed to deal with that case. The method was to appeal to a variety of tropes that could then be used to resolve the matter. Common Law and our own case law tradition mirror this in many ways. That Breyer should seek a new formulae indicates his variance from our legal tradition.
Yet the Roman, and early common law systems, were completely different to our own, despite some similarities. They very much based on 'moral' judgements, what was morally, rather then legally right (indeed, you could claim that the concept of legally right and wrong did not exist for them). The liberal legal ideologies of the 18thC changed all this (probably had something to do with the mess in the 17thC), making it so judges were meant to be impartial and unattatched to the cases they were dealing with. There are plenty of critiques about this out there (and you undoubtably know about CLS), but the differences between this, and the inquisitorial system used in parts of Europe, which encourages the judge to take an active role, is quite astounding.
My point is that the way in which the law is handled changes over time for what ever reason, and it could be said that any idea of Western Legal Tradition is purely academic.
Again I suggest you read the constitution . Its all there in black and white. Its called checks and balances and they are quite defined. That is until the court usurped this power.
And what checks and balances are those?
You entire legal/political system (and mine too) is pulled up by its own bootstraps. How it remains up is anyones guess, but it is a finely tuned balance. Now you could argue that Judicial Review rocks that boat, but it could also be argued that it has made it more stable... 200 years and the worst it's done is anoyed a few people, seems to be a pretty good record to me!
But this thread is more about judicial interpretation then that contraversial (in the US) power. Every time a judgement is passed the judge is interpreting the law in they own way... whether pragmatic or originalist it does not matter. If a judge interprets the document the way he thought the writers inteded, it's still HIS interpretation, no matter how much you want to highlight the fact he wants to use it as the writers intended.
Kanamori
08-05-2005, 06:50
Again I suggest you read the constitution .
I have read it many more times than once.
Its all there in black and white. Its called checks and balances and they are quite defined. That is until the court usurped this power.
Our Founders were not gods. And, it is much more than a matter of checks or balances, and the only time "balances" were hinted at was when I said, "I favor some hybridization of elements favoring the majority and the minority with a stronger prescence of the earlier." Without an authority in the area I've been ranting about, there is an enormous gap between what the Constitution says, and what is done in our country. It is unfortunate that Marshall chose to squander the power to himself rather than pushing a legitimate change when it was most likely to suceed.
Kanamori
08-05-2005, 06:54
Every time a judgement is passed the judge is interpreting the law in they own way... whether pragmatic or originalist it does not matter. If a judge interprets the document the way he thought the writers inteded, it's still HIS interpretation, no matter how much you want to highlight the fact he wants to use it as the writers intended.
This is unfortunate as well, but there is a big difference between interpreting where you can put your house, and what the Constitution says. (I am getting pretty sick of writing Constitution...maybe I should try the rest of the thread w/o using it :book: )
There is a distinction. I am not a Political Mastermind, I do not know the best way to make that final arbiter, but i do know that it should be neither the SC, nor the Legislature. I favor some hybridization of elements favoring the majority and the minority with a stronger prescence of the earlier.
I read through the reply to my post, but was basically baffled by most of what I read. This comment above explains somewhat better what I think you are about. What it appears you are about is the establishment of a Fourth Branch of government that is not Legislative or Judicial, but has power over all ultimate questions regarding society. In many systems this is called a dictatorship.
I don't understand your distain for popular sovereignty where governance and responsibility for that governance is held in common by the citizenry.
Kanamori
08-05-2005, 08:24
Does this mean I've won? ~;)
~:cheers:
Yet the Roman, and early common law systems, were completely different to our own, despite some similarities. They very much based on 'moral' judgements, what was morally, rather then legally right (indeed, you could claim that the concept of legally right and wrong did not exist for them). The liberal legal ideologies of the 18thC changed all this (probably had something to do with the mess in the 17thC), making it so judges were meant to be impartial and unattatched to the cases they were dealing with. There are plenty of critiques about this out there (and you undoubtably know about CLS), but the differences between this, and the inquisitorial system used in parts of Europe, which encourages the judge to take an active role, is quite astounding.
My point is that the way in which the law is handled changes over time for what ever reason, and it could be said that any idea of Western Legal Tradition is purely academic.
Roman law was not void of moral appeal. Quite the contrary. While natural law is properly attributed to St. Thomas it actually has a precursor in Stoic thought. One can easily take note of it in Cicero's works even while he was acting as a jurist.
My point was concerned with the form not the content of jurisprudence in the Anglo-American Tradition (I made no reference to inquisitorial models: bloody French). Roman law was not systemic. Neither was/is Common Law.
And what checks and balances are those?
You entire legal/political system (and mine too) is pulled up by its own bootstraps. How it remains up is anyones guess, but it is a finely tuned balance. Now you could argue that Judicial Review rocks that boat, but it could also be argued that it has made it more stable... 200 years and the worst it's done is anoyed a few people, seems to be a pretty good record to me!
Judicial Review is one of the direct causes of the Civil War. Read the Dred Scott Decision 1857.
Does this mean I've won? ~;)
~:cheers:
Maybe, are we decided that autocracy is the way to go?
Kanamori
08-05-2005, 15:06
Maybe, are we decided that autocracy is the way to go?
No, I am no Autocrat.
I read through the reply to my post, but was basically baffled by most of what I read. This comment above explains somewhat better what I think you are about. What it appears you are about is the establishment of a Fourth Branch of government that is not Legislative or Judicial, but has power over all ultimate questions regarding society. In many systems this is called a dictatorship.
Perhaps, rather than making gross exaggerations, you could point to specific things. Because, up until now, things have been descriptive and related to each other's questions and statements. There is yet another distinction: regardless of what conclusion I favor for the problem -- I thought I was pretty clear that they ought to have have strong ties tot he people and be responsible to them anyways -- you have left my pointing to the problem untouched. Remember, I only need one point and the status quo is kaput.
I don't understand your distain for popular sovereignty where governance and responsibility for that governance is held in common by the citizenry.
It is difficult to take such accusations in stride.
Kanamori,
I'm not trying for excess here. I am truly baffled in trying to come to terms with what your actual view is. You seem to want a final arbiter of law. Such a position would be superior to all other branches of government. You reject the SC holding this position. You reject the Legislature. I assume you reject the Executive. You seem to have rejected my view that the people themselves hold this position. So what is left? Whatever the place holder ends up being, I would think it will have to deal with charges of autocracy.
Maybe if I explain my own view again that would help clarify your own. You know I reject Judicial Review as un-Constitutional and demagogic. I support the original format as I understand it laid out in the Constitution. This is: the Legislature is the primary vehicle for creation of law. It holds this position because it is most reflective of the will of the citizenry and responsive to it. If the Legislature decides on a law that runs contrary to the nation's legal impulse then the people could place direct pressure on the Legislature to change it. This can be done through lobby groups, demonstrations and actual elections. Now I guess your question would be: what about oppressed minorities? Minorities, by definition, are always threatened by the majority and ultimately subject to it. The Constitution lays out various parameters to guide law and determine standard boundaries, but that is still subject to majority understanding. Let me give you two examples: slavery and polygamy. Slavery despite running counter to the base egalitarian impulse of the law was actually enshrined into the Constitution and remained that way until passage of the 15th Amendment in 1870. Polygamy: despite the free exercise of religion clause and the right of free association, polygamy was rejected in the Reynolds case in 1878. It has remained that way to the present because most people find polygamy repugnant. Are either of these examples of injustice? For the minorities involved that would certainly be the view. There are a whole host minorities that can claim oppression: gays for example. Sometimes these groups succeed in swaying the majority to support their cause, other times they don't. The salient feature remains that the people themselves as a collective body should be the ones to decide just what those parameters entail.
Kanamori
08-05-2005, 18:34
Then the Bill of Rights was a mistake that complicated things, if the Constitution is only meant to guide the workings of our government.
Then the Bill of Rights was a mistake that complicated things, if the Constitution is only meant to guide the workings of our government.
As you know the Bill of Rights was not original to the Constitution, but I think both us would argee its addition was a good thing: not the least of reasons being it lays out terms that can be appealed to when there is government overreach. Even so, its addition did nothing for either of the two examples I gave earlier.
Kanamori
08-05-2005, 19:17
Pindar, you have made it clear: the notions I had of our founding have been shattered. I was romantisized by the idea that I had those "certain unalienable rights" no matter how many people said I didn't.
Pindar, you have made it clear: the notions I had of our founding have been shattered. I was romantisized by the idea that I had those "certain unalienable rights" no matter how many people said I didn't.
Ahh, I see. There is a basic tension in rights discourse. There are two standard ways to approach the subject: rights as natural law and political exercise. Natural law is the older model. Its force is based upon a theological position. Unalienable rights gain their force irrespective of government sanction because God is the ultimate arbiter of justice and the law. This is what the Founding Fathers gave as a base justification for their rebellion against their lawful king and what Martin Luther King Jr. appealed to to justify civil disobedience.
Now the obvious problem is that a secular government is hard put to it when it comes to making religious appeal as the basis for law. This is why the other model developed. Political exercise appeals see rights as the sole product of political will. They come to be and pass away dependent on the decisions of the polity itself. You can see this tension in the history of the Court and American Law. As people adopt more and more of a moral minimalism regarding law it becomes more and more difficult to make appeals to natural law. I haven't argued a natural law view here because it carries no force with a secular mind. I hope that helps.
GodsPetMonkey
08-06-2005, 00:21
Roman law was not void of moral appeal. Quite the contrary. While natural law is properly attributed to St. Thomas it actually has a precursor in Stoic thought. One can easily take note of it in Cicero's works even while he was acting as a jurist.
My point was concerned with the form not the content of jurisprudence in the Anglo-American Tradition (I made no reference to inquisitorial models: bloody French). Roman law was not systemic. Neither was/is Common Law.
The reason I put moral in inverted commas is because such moral judgements were still product of the judicators personal whim. The liberal shift in the 18thC (which, for those with out an education in legal history, shifted it all to focus a lot more on individual rights and property-centric decisions) was meant to stop this, of course, judges are humans, and the experiment failed (has anything really changed?). Again the CLS provides a good critique, but utterly fails when it comes to solutions.
Judicial Review is one of the direct causes of the Civil War. Read the Dred Scott Decision 1857.
I think it did not help the situation, but it did not directly cause it. Think of what would have happened with out judicial review? The federal government would still have tried to walk all over the states, I'm not going to claim it had anything to do with slavery or freedom, it was purely about power, and who should have it. If anything, Dred Scott slightly hastened the inevitable, but it falls far short of any kind of smoking gun.
If the SC took one side over the other, so be it, it would surely bolster that side, but the other was not likely to stand down. The courts were merely another tool in the pre war power struggle.
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