The Breakfast Table

Re: Are we all legal realists now?

squirebass — Wed, 27 Jun 2007 20:41:05 GMT

Since I live in Texas, I think I understand where Texas Pete's line of reasoning comes from. Down here we have a lot of people who think that lawyers are what are keeping the majority of Americans(Republicans) from exercising their rights, doing the bidding of Rush Limbaugh and Pat Robertson, banning flag-burning, keeping the swarthy folks from acting up, stopping our governer from smoothing out the road for TXU to build unlimited coal power plants anywhere they want and the EPA be dammed. Texas Pete has probably listened to some AM Radio Professor like Rush Limbaugh every night for the last two years, over a 12 pack of beer, or a bottle of bourbon, so he knows ALL about the legal profession and how it is destroying America, as well as how to interpret the Constitution. THAT'S where they are coming from. Its kind of a variation on the theme that the "Liberal Media" has hoodwinked the public into being too liberal, etc. etc. but with Lawyers instead. I've lived in Texas all my life and I've heard this garbage enough that I recognize it on the spot! I have never heard it called "Legal Realism" before tho... I would call it the stuff that comes out of the south end of a north-bound bull, but I doubt you'd a taken him seriously if he had led off that that title...

Re: Irritated, now

the true conservative — Wed, 27 Jun 2007 16:52:41 GMT

[It's also revealing that you think elected representatives have "constitutional authority over the courts." In the Federal system, the Constitution has authority over the courts and the legislature. The Constitution gives the legislature the power to establish inferior courts (Art. III sec. 1) and to advise the president on judicial appointments (Art. II sec. 2), and that's about the extent of it. Anything more would violate that whole "separation of powers" thingamijig people used to believe in, not that this bothers you in this context: you only care about principle when it favors your side.]

The legislature DOES have power over the courts. Congress created all the inferior courts, and can clearly re-arrange them as they see fit. Congress has, as you said, advise and consent responsibility of SC appointments, which give them enormous discretion on who the will or will not allow on the bench. Justices also serve for "good behavior," which either gives the legislature the power to remove them, or means nothing.

Re: Irritated, now

vnk — Wed, 27 Jun 2007 14:24:32 GMT

the true conservative:

So sorry you're irritated. But your irritation is maybe causing you to hyperventilate a bit. None of that will be necessary. All that it requires is enough people who agree with me insisting that their elected representatives exercise their constitutional authority over the courts. The democratic process will solve the problem just fine if enough people will insist on it.

And if they don't care enough to fight for their freedoms, then I guess we get what we deserve.

It's revealing that when people agree with you it's "the democratic process solving the problem" and when they don't it's "people not fighting for their freedoms."

It's also revealing that you think elected representatives have "constitutional authority over the courts." In the Federal system, the Constitution has authority over the courts and the legislature. The Constitution gives the legislature the power to establish inferior courts (Art. III sec. 1) and to advise the president on judicial appointments (Art. II sec. 2), and that's about the extent of it. Anything more would violate that whole "separation of powers" thingamijig people used to believe in, not that this bothers you in this context: you only care about principle when it favors your side.

As for the state level, I can't speak for 49 other states, but where I live Article IV, Section 1 of the state constitution says, "The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government...." You may want to keep your crusade for an impotent judiciary out of North Carolina. But hey, wherever you are, feel free to keep trying or whatever.

Re: Irritated, now

the true conservative — Wed, 27 Jun 2007 13:51:31 GMT

[You have a cramped and constipated view of the courts that hasn't prevailed in this country since Marbury v. Madison. Feel free to build a time machine, move to a desert island, or to attempt to recruit the necessary supermajority to create a new form of government.]

So sorry you're irritated. But your irritation is maybe causing you to hyperventilate a bit. None of that will be necessary. All that it requires is enough people who agree with me insisting that their elected representatives exercise their constitutional authority over the courts. The democratic process will solve the problem just fine if enough people will insist on it.

And if they don't care enough to fight for their freedoms, then I guess we get what we deserve.

Re: Are we all legal realists now?

the true conservative — Wed, 27 Jun 2007 13:45:38 GMT

[So the legislatures are infallible--why? Because they are the "will of the people" or some such? And if the legislature creates a law expressly infringing on speech, and it is challenged, then the SCOTUS is supposed go along with it because it's law? Um, then exactly what purpose would they serve?]

Of course they aren't infallible. If the legislatures pass a law (campaign finance reform comes to mind) that violates the plain reading of the constitution, then of course it should be shot down.

That is NOT the same as suddenly deciding a law that has been in existence since the founding of the country is suddenly unconstitutional. That CERTAINLY is not the same thing as vnk's assertion that justices should interpret the constitution to mean whatever they think is best for modern society.

Justices need to uphold the law. And yes, the constitution is the highest law of the land, and lesser laws that are contrary to it are invalid. But judges need to respect the law as written, not make it up as they see fit.

Irritated, now

vnk — Wed, 27 Jun 2007 02:36:28 GMT

the true conservative:
VNK, my friend, it's like you simply refuse to understand what kind of country we live in. We CAN CHANGE THE LAWS QUITE EASILY. We have a legislature precisely for that reason. When a new circumstance comes up that is completely unlike anything we've ever faced before, we discuss it, debate it, and in the end our elected representatives pass a law to deal with the new situation. We are NOT bound only by what the Constitution says. That is what they are for.

That is NOT what the courts are for. Their job is to apply existing laws to specific cases that come before them. It is NOT their jobs to decide what the Constitution would say if it was written today. We are a free people, or at least we keep telling ourselves we are.

Truthfully, I suspect that the reason you libs are so fond of the courts is you know that large majority of the voting public would never go along with most of what you support. Essentially, you are closet tyrants, willing to force your views on an unwilling public.

If I'm wrong, then tell me how.

We are bound by the Constitution and the contemporary working interpretation of it (regardless of what mode of interpretation you prefer, conservative or liberal: to interpret the Constitution narrowly is still to interpret it).

The fact is, the legislature can pass an unconstitutional law. The executive can behave in an unconstitutional manner. I'm not the one who doesn't understand what kind of country we live in: we live in a country organized under a Constitution. You have a cramped and constipated view of the courts that hasn't prevailed in this country since Marbury v. Madison. Feel free to build a time machine, move to a desert island, or to attempt to recruit the necessary supermajority to create a new form of government.

As for your inane ad hominem feint towards my supposed despotism or fondness for the courts: the reality, "my friend," is that I have the mix of love and contempt that intimate familiarity breeds. Yes, I'm not only a liberal, I'm also one of those horrible, awful lawyers who has ruined the system merely by existing.

What I've seen of the SCOTUS opinions issued Monday suggests there wasn't much for a old-school liberal like myself to like, much less love: but them's the rules and that's how the game will have to be played. Let me stoop to the ad hominem myself (you've inspired me!): unlike you conservatives, I actually respect the rule of law and believe that society requires a certain level of enlightened, reasoned organization to justify the title "civilization." Sometimes that means you have to deal with disagreeable decisions by your legislature, your president, or your courts. (Sometimes, as the wandering stranger said, you eat the bear, and sometimes the bear eats you.)

Let me close by noting that the large majority of the voting public isn't always right: they were wrong, for instance, about slavery and segregation. Nor are Supreme Court Justices always wise: they were wrong about slavery and the New Deal, for example. A beautiful thing about our system of governance is that it tries to minimize the harm that the voting public and legal scholars can do.

(Hmm, your posts have achieved something: you've restored a certain amount of my patriotism during a week in which I was in something of a foul mood. You're still completely wrong, of course, but thanks anyway.)

Re: Are we all legal realists now?

davsun — Tue, 26 Jun 2007 23:53:48 GMT

I am going to go out on a limb here and assume TexasPete is not a lawyer. Sorry Pete, but your comment saying "Interpreting the Constitution does not require a background in law." is pure ignorance. While you claim the Constitution is a short document with clear meanings for all of its clauses, you couldn't be further from the truth. Try attending a Constitutional law class in law school and you'll see why you are so wrong. Care to discuss with me the applicability of the Privileges and Immunities Clause(s) of Art. IV and the 14th Amendment?? How about the Due Process Clause of the 5th and 14th Amendment's (both Procedural and Substantive)?? How about the Commerce Clause in Art. I, section 8 and where we draw the line with how Congress can utilize its power to regulate commerce among the states, with foreign nations, and tribes?? Try going to law school or at least dig a little deeper into the subject before you make such wild claims. There are various theories for Constitutional interpretation and it is truly anything BUT straightforward.

Re: Are we all legal realists now?

Textualist — Tue, 26 Jun 2007 23:03:48 GMT

<<asking the hypothetical question of what they might have thought about a situation that was technologically or socially impossible in the 18th century, as a Justice like Scalia purportedly would, is delusional.>>

I disagree, although this might at least be close for Thomas (as seen in the Morse case). If an asserted right is "reasonable" from the text of the Constitution OR has a historical tradition, then he would consider it a right (such as confrontation clause in Maryland v. Craig). If it does not, such as essentially a "right to loiter" in Chicago v. Morales or essentially a"right to be left alone" in Hill v. Colorado, he would not consider it a "fundamental" right.

Re: Are we all legal realists now?

Textualist — Tue, 26 Jun 2007 22:40:38 GMT

<<We don't gripe about the Dred Scott - Plessy switcheroo.>>

I think you meant Plessy-Brown switcheroo, but I get your point. Good post, however (although I disagree with Roe).

Re: Are we all legal realists now?

kygirl93 — Tue, 26 Jun 2007 22:06:46 GMT

the true conservative:

VNK, my friend, it's like you simply refuse to understand what kind of country we live in. We CAN CHANGE THE LAWS QUITE EASILY. We have a legislature precisely for that reason. When a new circumstance comes up that is completely unlike anything we've ever faced before, we discuss it, debate it, and in the end our elected representatives pass a law to deal with the new situation. We are NOT bound only by what the Constitution says. That is what they are for.

That is NOT what the courts are for. Their job is to apply existing laws to specific cases that come before them. It is NOT their jobs to decide what the Constitution would say if it was written today. We are a free people, or at least we keep telling ourselves we are.

So the legislatures are infallible--why? Because they are the "will of the people" or some such? And if the legislature creates a law expressly infringing on speech, and it is challenged, then the SCOTUS is supposed go along with it because it's law? Um, then exactly what purpose would they serve?

We are a "free people" because of the Constitution, not in spite of it, as you seem to think.

Truthfully, I suspect that the reason you libs are so fond of the courts is you know that large majority of the voting public would never go along with most of what you support. Essentially, you are closet tyrants, willing to force your views on an unwilling public.

If I'm wrong, then tell me how.

You can't possibly be serious on this????

Re: Are we all legal realists now?

the true conservative — Tue, 26 Jun 2007 20:30:55 GMT

VNK, my friend, it's like you simply refuse to understand what kind of country we live in. We CAN CHANGE THE LAWS QUITE EASILY. We have a legislature precisely for that reason. When a new circumstance comes up that is completely unlike anything we've ever faced before, we discuss it, debate it, and in the end our elected representatives pass a law to deal with the new situation. We are NOT bound only by what the Constitution says. That is what they are for.

That is NOT what the courts are for. Their job is to apply existing laws to specific cases that come before them. It is NOT their jobs to decide what the Constitution would say if it was written today. We are a free people, or at least we keep telling ourselves we are.

Truthfully, I suspect that the reason you libs are so fond of the courts is you know that large majority of the voting public would never go along with most of what you support. Essentially, you are closet tyrants, willing to force your views on an unwilling public.

If I'm wrong, then tell me how.

Re: Are we all legal realists now?

vnk — Tue, 26 Jun 2007 20:07:15 GMT

One difference between liberals and conservatives in this country is that the conservatives obsess unnecessarily over what the founders intended. What the founders intended, in my view, was to create a flexible document that could be adapted to various situations; asking the hypothetical question of what they might have thought about a situation that was technologically or socially impossible in the 18th century, as a Justice like Scalia purportedly would, is delusional. To ask what Jefferson or Madison intended about DNA patents, digital reproduction of copyrighted material for personal use, free speech in public schools, or use of public monies to assist unmarried young women in procuring abortions presupposes that you had time to explain genetics, electromagnetism, the establishment of education funded by property taxes and the evolution of "youth culture" over the latter half of the 20th century, and a revolution in gender roles beginning with suffrage movements in the 1890s and 1920s and subsequently accelerated by a World War in the 1940s and technological advances in birth control in the 1950s.

In other words, conservatives would have you ask dead men complicated questions that they'd be incapable of understanding the premises of to start with.

Making any other claims, then, about what I think the founders intended about abortion is absurd: I really don't care what the founders intended about abortion for non-historical purposes any more than I care what they thought about slavery beyond the historic context. I only went on about what they intended regarding the courts to point out the obvious fallacy in your claims about democratic control.

As to what the Constitution says today, I see two options. I can interpret it as a living document, interpreting it in an expansive way that includes a contemporary sense of things like freedom and privacy, or I can interpret it as a dead document. If it's the latter, we are in an age of Constitutional crisis and it is time for at least a Constitutional Convention if not an outright revolution: unfortunately, this would be rather messy and inconvenient. Having professionally sworn to uphold the Constitution when I became an attorney, and liking a modicum of stability in my day-to-day life, and being an unabashed liberal, I prefer to read it as a living document that creates a penumbra of rights, some of them fundamental.

Okay, I actually do suspect that's what Mr. Jefferson, at least, intended even if he and I would differ about what those rights might be--but if it's not, well screw him: he's dead and I'm not.

Re: Are we all legal realists now?

the true conservative — Tue, 26 Jun 2007 18:21:34 GMT

vnk:

What about our most important right of all: The right to direct our government via the democratic process?

Part of the problem here is that you seem to be operating under some confusion about the system of government the founders attempted to create via the Constitution. We emphatically don't live in a true democracy.

The founders were struggling to come up with a system of government balanced against two disparate forms of tyranny: the tyranny of despots on the one hand and the tyranny of mobs on the other. The compromise that was decided upon was that rule would be decentralized but concentrated in a Federal, tripartite, quasi-oligarchical form. (The oligarchical aspects of our government were greatly reduced by Amend. XVII.)

Under the Constitution as originally written, "our" ability to "direct" our government is filtered in a number of ways: our State officials elect the Senate and choose the electors for President, the Federal officials we directly elect to the House are members of an inferior legislative body, and judicial officials are selected by the indirectly-elected President subject to the advice and consent of the indirectly-elected Senate. The machinery is designed to be operated by remote pulleys and rods so that neither a mad crowd nor a would-be monarch can muck up the works with greasy fingers.

Seen in that light, the lifetime appointment of judicial officials is a benefit, not a curse: judges and justices can operate without fear of being at the whim of electorates or elected officials. In other words, the judiciary is intentionally an anti-majoritarian body that, in theory at least, can protect minorities or serve as a braking mechanism against heedless changes at the majority's whim. (Whether this is the case in practice, of course, is another matter.)

Frankly, whenever people complain about "judicial activism," it's inevitably code for "striking down or enforcing policies I don't agree with and my opinion ought to control because I'm a taxpayer and I vote and I'm right and I know it." Such pleas are often followed by an appeal to "democracy" -- probably because democracy is a nice idea that flatters our egos. The notion that maybe democracy can be a bad thing and that the political geniuses who wrote the Constitution knew it doesn't ever seem to enter into it.

We live in a republic with democratic features and institutions. It's not a bad compromise, but only because there are anti-majoritarian controls to keep a riot from breaking out.

Look, I know full well the the Constitution puts brakes on the popular will. You're not as much smarter then everyone else as you seem to think.

But the Constitution also puts brakes on the Judiciary. They are supposed to be constrained by its meaning. When they decide to call whatever they think is good policy "Constitutional" and whatever they dislike "Unconstitutional" we've lost our freedoms.

You can debate whether abortion should be legal or not. That is a legitimate conversation. But try to tell me that the Founders INTENDED the constitution to protect abortion as a fundamental human right. You and I both know that's a lie.

We can debate whether gay marraige should be legal in this country. But try to tell me that the Founders intended to protect gay marraige as a fundamental human right, and you and I both know it's a lie.

The fact is that MOST of these types of questions were purposely left up to the legislative bodies. When courts decide them for us, they are usurping authority that does not belong to them.

Re: Are we all legal realists now?

the true conservative — Tue, 26 Jun 2007 18:11:38 GMT

[Article III judges serve "during good behavior." Judges can, and have been, removed from office for their poor conduct (google, for example, "Walter Nixon"). When they are so impeached, it's by Congress, and the courts will refuse to even consider whether the impeachment was proper - it's entirely in the hands of the elected officials.]

Would to God that Congress has the cojones to actually exercise this right in the modern era.

Re: Are we all legal realists now?

the true conservative — Tue, 26 Jun 2007 18:10:04 GMT

kygirl93:

Oh come now. We vote them in one time, then for the next forty years they get to do whatever they feel like without ever facing any voters again, and that's the democratic process at work?

Don't think so.

Um, yes, that is EXACTLY the "democratic process" as outlined by the Constitution itself, the document you would like to see so ruthlessly followed! To remind you--the point of the INDEPENDANT, NOT DIRECTLY ELECTED JUDICIARY is to provide checks to the other branches by a group that is not beholden to the whims of the electorate, they are only beholden to the Constitution itself. And, it's function is to interpret the laws of the land to determine whether they fit into the constitutional framework. That's what they do. The problem for folks like you comes when they don't interpret laws in a way that you like.

So long as they are actually beholden to the Constitution, I think that's great. It's when they go beyond the plain wording of the Constitution that we run into problems. That's exactly my point.