The US Constitution - It doesn't help

[JoeTheJuggler]

Opinions differ upon what is “productive, fair, useful and the like”.

True that. Though I would point out that the real issue here is that in our system, the legislative and executive branch gets to decide what is good policy ("productive fair, useful and the like"), while the judicial branch has the authority to say whether or not a law is constitutional. The judiciary doesn't really get to strike down a law because they disagree with the policy. They are supposed to defer to the legislative process on those questions.

 

[BeAChooser]

The judiciary doesn't really get to strike down a law because they disagree with the policy. They are supposed to defer to the legislative process on those questions.

Tell that to activist liberal judges ... like those in California.

 

[BobTheCoward]

I think this is a question of social psychology. I am reading a bunch of political arguments, but I feel the reason we arrive at these opinions is more relevant to the thread.

 

[brodski]

Tell that to activist liberal judges ... like those in California.

So, what are the constitutional definitions of, and remedies for, activist judges?

[Of course, you've had to deal with activist judges since at least 1803, when the supreme court declared that it had the power to nullify legislation.

 

[The Fallen Serpent]

An important issue of disagreement is of course Judicial Review. The concept was familiar to the founders and a point of debate from the beginning. Over half of the original states gave the power of Judicial Review to their state Supreme Courts in their State Constitutions. Most States today have such a clause, including California. So Judicial Review is a matter of legistlative granted power as far as the State Courts are concerned.

As far as the federal courts and the power of Judicial Review, it is not explicitly in the US Constitution. A few of the Founding Fathers claim the power is inferred in the powers of the Judiciary. The matter was brought to attention and explicitly settled in 1803 in Marbury v. Madison. If one wants to claim that this power is contrary to the Constitution and is a sign of a federal power grab, well we have existed under this position for over 200 years and the brunt of the history of the US government. The intent of the Founding Fathers varied, especially between what would become the Federalist and the Democratic-Republican parties. A number of issues in the Constitution were compromise deals and as the history of the US government rolled along some of these compromises broke or changed in their nature. Some have stood the test of time but are still controversial.

Personally I think the US Constitution is an important and extremely elegant legal document. However I think it shows its age and circumstances have changed in the over 200 years of existence. By and large I favor the textual changes we have seen in it. I agree with the specifics of the document as a whole, but personally find alterations from modern concepts would benefit the strength of our Constitutional law. What I find one of its greatest strengths is that the central document could equally apply to a variety of systems and incarnations that would be wholly different in practice.

What is unique in our Constitution compared to the implied and written Constitutions of many other governments is that there is no direct line of descent from a traditional authority in its empowerment. Commonwealth nations can trace the powers of their government back to monarchial agreements, forced or not. Even though we share that lineage we have the violent break in which we disregarded such authority and fashioned a new authority of a different nature. This also applies to much of Latin America, with similar violent breaks from traditional authority. In western Europe it appears democratic and republican (traditional sense) governments came about through a general weaking of monarchial and church powers of government. There is usually a direct line of empowerment. I am uncertain about eastern Europe. This is why there are instance of legal issues in western Europe that are considered illiberal but in practice are of small import. The Church of Sweden for instance is not perceived as a major threat to liberty, more of a speed bump that is increasing in irrelevance. A reconstituted modern Swedish government might very well include a no official religion clause.

A better formulation for the thread title would be "The US Constitution - It is not perfect." The Constitution is helpful. It is mightily helpful. It is not perfect and I doubt there ever will be a perfect constitution for a human institution. As much political rhetoric that surrounds the idea, the view that the constitution should be restricted to its original text and left unchanged is a very small minority view. If I am recalling correctly, the only political party with such a platform is the Constitution Party and in the very same sentance seeks to return our laws to their biblical roots. Which of course is contradictory with the Constitution.

 

[brodski]

When you talk about no violent break from monarchy in western European systems, I presume that you exclude France, Germany, Spain and Italy from that?

 

[The Fallen Serpent]

When you talk about no violent break from monarchy in western European systems, I presume that you exclude France, Germany, Spain and Italy from that?

Fair enough. I suppose my generalitiy was not as solid as I was thinking. I admit ignorance in the formations of Italian and Spanish governments. France clearly had an anti-monarchial revolution. I was under the impression that German republicanism was an investment of Prussian monarchial powers into the Bismark government that further evolved but again it is not something I have read too much about.

 

[Dancing David]

I think this is a question of social psychology. I am reading a bunch of political arguments, but I feel the reason we arrive at these opinions is more relevant to the thread.

Personally I like game theory and the moral imperitive of equality.

 

[Dancing David]

Tell that to activist liberal judges ... like those in California.

Or Dred Scott

 

[The Fallen Serpent]

Or Dred Scott

Valid or not, the opinion of the court provided a Constitutional basis for rejecting the provisions of the Missouri Compromise as running afoul of the Fifth Ammendment, not merely personal opinion. I am not familiar with a case of Judicial Review where a Judge claims only personal opinion for overturning a law, in either state or federal courts. Such instances may be out there but I am unfamiliar with such.

 

[JoeTheJuggler]

As far as the federal courts and the power of Judicial Review, it is not explicitly in the US Constitution. A few of the Founding Fathers claim the power is inferred [sic] in the powers of the Judiciary. The matter was brought to attention and explicitly settled in 1803 in Marbury v. Madison.

I don't see how the judicial power could have been interpreted other than it was in Marbury v. Madison. Article III Section 2 explicitly gives the judiciary the authority to settle disputes arising from laws including the Constitution. Further, I've read that discussion of judicial review (in the affirmative) was part of the legislative history of the Constitution, while there was an absence of opposition to the idea.

The Marbury decision cited this section almost word for word:

The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

And in dealing with the idea of whether or not a law is constitutional, Marshall wrote, in the Marbury decision:

The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.

In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law. The constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?

I don't think the argument is that it's an implicit power, but rather exactly the authority granted to the judiciary. How else could the judiciary have the authority to settle disputes arising from the laws and the Constitution? Either the Constitution explicitly gave the judiciary this authority, or Article III Section 2 is meaningless.

This so-called reverence for the Constitution is seen also in Article VI which requires all of Congress, all members of state legislatures and all executive and judicial officers to be "bound by oath or affirmation to support this Constitution". It was obviously seen as the document that is the ultimate rule book for our government--an authority higher than any individual branch or office.

If American Government were a card game, the Constitution would be Hoyle. If it were a Scrabble game, the Constitution would be the Scrabble Dictionary (or Tournament Word List).

 

[JoeTheJuggler]

Valid or not, the opinion of the court provided a Constitutional basis for rejecting the provisions of the Missouri Compromise as running afoul of the Fifth Ammendment, not merely personal opinion. I am not familiar with a case of Judicial Review where a Judge claims only personal opinion for overturning a law, in either state or federal courts. Such instances may be out there but I am unfamiliar with such.

Exactly.

I think the nearest thing to this kind of "judicial activism" was Bush v. Gore, but even that egregious decision was couched in terms that at least made it appear to be based on legal principles.

 

[JoeTheJuggler]

What is unique in our Constitution compared to the implied and written Constitutions of many other governments is that there is no direct line of descent from a traditional authority in its empowerment. Commonwealth nations can trace the powers of their government back to monarchial agreements, forced or not. Even though we share that lineage we have the violent break in which we disregarded such authority and fashioned a new authority of a different nature. This also applies to much of Latin America, with similar violent breaks from traditional authority. In western Europe it appears democratic and republican (traditional sense) governments came about through a general weaking of monarchial and church powers of government. There is usually a direct line of empowerment. I am uncertain about eastern Europe. This is why there are instance of legal issues in western Europe that are considered illiberal but in practice are of small import. The Church of Sweden for instance is not perceived as a major threat to liberty, more of a speed bump that is increasing in irrelevance. A reconstituted modern Swedish government might very well include a no official religion clause.

A better formulation for the thread title would be "The US Constitution - It is not perfect." The Constitution is helpful. It is mightily helpful. It is not perfect and I doubt there ever will be a perfect constitution for a human institution. As much political rhetoric that surrounds the idea, the view that the constitution should be restricted to its original text and left unchanged is a very small minority view. If I am recalling correctly, the only political party with such a platform is the Constitution Party and in the very same sentance seeks to return our laws to their biblical roots. Which of course is contradictory with the Constitution.

QFT. All of this is very well said.

(And on that last point, those who wish to change the Constitution back to its original text have the logical problem of justifying that while keeping the original text of Article V!)

 

[The Fallen Serpent]

I don't see how the judicial power could have been interpreted other than it was in Marbury v. Madison. Article III Section 2 explicitly gives the judiciary the authority to settle disputes arising from laws including the Constitution. Further, I've read that discussion of judicial review (in the affirmative) was part of the legislative history of the Constitution, while there was an absence of opposition to the idea.

I agree that this was the proper and most logical way to interpet the power of the Judiciary. It still was not explicit, but it did not need be. According to Madison's notes on the Constitutional Convention only very few opposed the idea of Judicial Review and the matter was left to be resovled at a future point instead of something explicit in the Constitution. It was not exactly a major topic and the brunt of opinions of those few expressed them were in favor of Judicial Review. As I said before, Marbury v. Madison explicitly settled it and expressed opinion before was that it was inferred. I agree that sometimes American political rhetoric gets bogged down in the text of the Constitution in a way that overlooks the equally valid body of common, case and federal laws surrounding it that are important for any interpetation.

ETA: Looking back, I see where I misrepresented the issue of Judicial Review as more controversial than it was. There was disagreement and that disagreement was effectively shelved, but it is clear that Judicial Review was a clear winner in the politics of the Founding Fathers.

ETA2:

(And on that last point, those who wish to change the Constitution back to its original text have the logical problem of justifying that while keeping the original text of Article V!)

Agreed. This one always bothers me. The original document and intent was for a living document that changes, even with arguements over certain methods of change being incorrect, an arguement of constitutional originality is in direct contradiction of constitutional originality. Of course, a more nuanced detail of the Constitution Party platform does not completely call for constitutional originality. They want a document with more severe restrictions on legal immigration and often times argue for more direct recognition of Christianity (oftentimes specifically Protestantism). "We want the original document.... with these significant changes."

 

[Dancing David]

Valid or not, the opinion of the court provided a Constitutional basis for rejecting the provisions of the Missouri Compromise as running afoul of the Fifth Ammendment, not merely personal opinion. I am not familiar with a case of Judicial Review where a Judge claims only personal opinion for overturning a law, in either state or federal courts. Such instances may be out there but I am unfamiliar with such.

I am just pointing out the history of what the SCOTUS does changes, and the meme of 'activist judges' is silly, esepcially when applied to Roe vs. Wade, Brown vs. BOE, McCullom vs. BOE, there is a long line of judicial action in cases changing over time.

Now the California courts make many decisions, so I don't know which one BAC is talking about.

And so 'activist judge' just usually refers to a judge you disagree with.

 

[JoeTheJuggler]

Looking back, I see where I misrepresented the issue of Judicial Review as more controversial than it was. There was disagreement and that disagreement was effectively shelved, but it is clear that Judicial Review was a clear winner in the politics of the Founding Fathers.

Amen.

And my point about the reverence is that it is the document that is revered and not the founding fathers. As I've been saying, part of the reason is that we saw all law makers as scoundrels (or at least potential scoundrels).

Your point about the origin of this authority that is above all individuals is an important one. In monarchies, that authority ultimately was a religious idea (the divine right of kings, or the Great Chain of Being, or whatever). In our system, it is really a social contract. We all agree to be bound by the Constitution.

Just as with the supreme authority of Parliament, the people still retain the supreme authority here, even if we just "temporarily" cede that authority to something else. The Declaration of Independence gives us a justification for exactly what to do if this experiment were to fail and turn into tyranny. But, contrary to what the Tea Party folks might think, that hasn't happened.

 

[The Fallen Serpent]

I am just pointing out the history of what the SCOTUS does changes, and the meme of 'activist judges' is silly, esepcially when applied to Roe vs. Wade, Brown vs. BOE, McCullom vs. BOE, there is a long line of judicial action in cases changing over time.

Now the California courts make many decisions, so I don't know which one BAC is talking about.

And so 'activist judge' just usually refers to a judge you disagree with.

I see. Agreed then. Personally, I had originally thought Activist Judge meant a judge who ruled in disagreement with previous case law and interpetations, but I have noticed the term now largely applies to Judges who use Judicial Review to resolve supposedly conflicting laws in a way a person disagrees with. I had this arguement with a friend of mine over Sotomayor supposedly having one of the strongest records of not partaking in Judicial Activism as per my previous definition, and my friend bringing up cases he disagreed with even though she was following previous rulings. I could get him to make the statement that it is most preferential for a judge to rule in line with precedent rather than personal opinion, but somehow his examples where she did so where he disagreed with precendent was still judicial activism and made her illeligible for the supreme court by his opinion.

 

[BeAChooser]

So, what are the constitutional definitions of, and remedies for, activist judges?

[Of course, you've had to deal with activist judges since at least 1803, when the supreme court declared that it had the power to nullify legislation.

Why ask me? Why not ask JoeTheJuggler who claimed "The judiciary doesn't really get to strike down a law because they disagree with the policy. They are supposed to defer to the legislative process on those questions."

 

[BeAChooser]

Now the California courts make many decisions, so I don't know which one BAC is talking about.

Nice dodge.

 

[The Fallen Serpent]

Why ask me? Why not ask JoeTheJuggler who claimed "The judiciary doesn't really get to strike down a law because they disagree with the policy. They are supposed to defer to the legislative process on those questions."

Yet you are the one to label them "activist liberal judges." I do not want to dispute the liberal label, but what is an activist judge and does it have any bearing on the issue of Constitutional law?

Nice dodge.

You did not even state if you mean California state judges or federal judges that reside or come from California. I assume you mean federal judges but leave you open to correct me. If your claim is that activist judges in California are an issue of Constitutional crisis then it is your responsbility to back that claim. If, as I suspect, you are claiming cases of Judicial Review in which you disagree with the ruling then it is your responsibility to back such claims as either having no claimed backing of Constitutional law or to back the claim that Judicial Review is in itself contrary to the Constitution. The first should be simple if time consuming. Link to court opinions of Judicial Review where no Constitutional principle is referenced. The second will be more difficult as there is over 200 years of explicit backing in favor of Judicial Review being in line with the Constitution, and the entire history of the US Constitution in which the majority opinion held to support of Judicial Review.