Wednesday, July 20, 2005

Judges, litmus tests, abortion

Conservatives and liberals interested in law have an ongoing fight about whether the Constitution should be "read" (conservatives) or "interpreted" (liberals). What I would like to point out in this post is:

1) Both sides bring something important to the debate.
2) When you combine their arguments you reach a conclusion that no one is willing to admit, but that everyone knows is true. (Pointed out below).

Abortion is a perfect example of what I'm talking about. Conservatives say that there is no right to abortion in the Constitution; they're correct. Liberals say that "evolving standards of decency" mean that in a free society a woman should have access to an abortion; they're correct.

When there is a ruling about abortion, not only are judges ruling about what they think is in the Constitution, but they're also ruling about what they think would be best for the country. There is no way to separate these two lines of thought, but you'll still never find a judge who says "Well, I don't think this is the right way to rule, but I'm going to anyway because the Constitution and I just disagree here and I'm going with the big C."


At 10:30 AM, Blogger StandingOutInTheCold said...

I disagree. I think that a good judge, and I believe there are many like this, should go with the rule of law and precedent even when it doesn't go along with their ideology. For example, when the Texas sodomy laws were still in effect the judges in Texas always ought to have found people guilty if they were involved in sodomy, even if that judge thinks that the sodomy laws are stupid. Of course, its a little more blurry with the SC, of the states or the US, because they get to decide what laws are okay and what aren't. But if you're a Justice even if you think that a law is dumb, as long as its legal you should let it stand. It's supposed to be up to the Legislature to decide whether or not to keep the law, as long as its legal. The Justices are not supposed to impose their ideology on the law, they are supposed to decide what is legal and what is not. Even if you think a pracitice is dispicable, if there is no legal reason (in the case of the SC that means in the Const or precedent) then you ought to let it stand. As is the case with the sodomy laws. Even if you think sodomy is 'gross' or 'evil' there is no proof, at this point, that allowing it is in any way illegal. So you can't stop states from allowing it. On the other hand, I don't know that there is convincing evidence in the Const that you can't make it illegal, though, and I guess thats where some ideology comes in. But its ideology about what the Const is allowing, not if the practice itself is right or wrong. Because if you say the Const does not provide for sexual freedom that means that it can't protect heterosexuals either. Similarly, the SC should only rule on whether it is legal for states to outlaw abortion -- that is whether the Const implies that abortion is a right that the states can't take away. The SC should not say abortion is illegal, or legal. Thats up to the Legislatures. They should and can (legally) only say whether abortion is protected by the Const or whether its up to the Legislatures. So the only ideology that should come into play is what you think the Constitution says, not whether or not something is a good thing to do.

At 10:32 AM, Blogger StandingOutInTheCold said...

" can't protect heterosexuals either" of course I meant heterosexuals not indulging in sodomy. The sodomy laws were not specific to homosexuals, although they were widely regarded, probably rightly, as a measure to stop homosexuality.

At 10:35 AM, Blogger RedHurt said...

Yes; I disagree as well. In my opinion, laws are intended to direct what's best for the country, while judges are only in place to enforce the law. If the law is bad or not in the best interests of the country, the laws should be changed; not over-ruled. That's legislating from the bench, that's over stepping the bounds of the judiciary branch, and that's breaking the balance of power.

At 10:51 AM, Blogger CharlesPeirce said...

I think you guys missed my point. standingout, you wrote:

"I think that a good judge, and I believe there are many like this, should go with the rule of law and precedent even when it doesn't go along with their ideology."

I didn't say they shouldn't, I just said they don't, and if you want to prove me wrong, you need to cite cases in which they did, not make an argument (albeit a good one) about what they SHOULD do.

At 11:39 AM, Blogger J. Morgan Caler said...

Against redhurt and standingoutinthecold, I would cite the opinion of the court in Marbury v. Madison (5 U.S. 137, February, 1803), written by Chief Justice John Marshall:

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits.

It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction....

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

At 12:09 PM, Blogger StandingOutInTheCold said...

J Morgan, unless I am reading that opinion wrong it seems to be saying that the Constitution voids law when there is a conflcit between the two. Which is exactly what I am saying -- the Justices must determine whether a law is okay in the Constitution or not. As opposed to whether their personal ideology leads them to believe that the law is acceptable. They have to determine what they believe the Constitution to say in regards to a law, nothing less or more. They don't get to decide whether the law is right or wrong, just whether it violates the guidelines of the Constitution or not.

At 12:20 PM, Blogger CharlesPeirce said...

I see what you're saying, standingout, and so now we have at least 3 issues being discussed:

1) The role of Constitutionality in deciding on laws
2) The role of personal ideology

and 3, exactly how much power a judge has to change/strike down laws IF they believe it is unjust for ANY reason.

Just a helpful reminder so we don't all go in 17 directions at once on each other.

At 12:32 PM, Blogger J. Morgan Caler said...


Perhaps I misread your comment, but you seem to be arguing that the role of the judiciary is to “go with the rule of law and precedent even when it doesn't go along with their ideology." The reason I selected that portion of Marbury v. Madison is because I don’t think “ideology” (to quote you) and “determin[ing] which of these conflicting rules governs the case” (to quote Marshall) are separable things. That is, the role of the judiciary, to again quote Marshall, is “to say what the law is,” which is inextricably linked to what the justices think about the law (i.e. the ideological commitments that determine their reading of the constitution).

So I loathe comments like this one made by Sen. Clinton:

“I look forward to the Committee’s findings so that I can make an informed decision about whether Judge Roberts is truly a guardian of the rule of law who puts fairness and justice before ideology."

It doesn’t make any sense. Marshall clearly understood and argued that interpreting the law in light of the constitution meant first interpreting the constitution (hence this huge argument about how to interpret the constitution regarding “the very essence of judicial duty”). Again, that was not, is not, and cannot be done apart from the interpreter’s “ideology.”

At 12:49 PM, Blogger CharlesPeirce said...

I think that's why it's silly for Republicans OR Democrats to criticize each other as "ideologues"--what they're objecting to is not that the person HAS an ideology, but that the person is ruling in a way they think A) unconstitutional or B) ungood.

standingout DOES raise the related, but distinct, procedural question of what should happen when judges come across a law that meets criteria A and/or B above. I don't know enough about our legal and judicial systems to answer that question, and I welcome input on it.

My ORIGINAL point was merely that, just as j. morgan pointed out, there's no way to approach the law free from your own views.

At 1:32 PM, Blogger StandingOutInTheCold said...

I agree that a Judge's views affect how they rule. But I also believe that its possible to be objective. You could think, for example, that guns ought to be made illegal. But you can see clearly in the second amendment that there is at least SOME right to arms gauranteed in the Constitution. You can interpret the second amendment many ways, depending on your ideology for sure. But if you're being objective you cannot come to the conclusion that the only people who should be allowed to own weapons are the military and police. So, even if you prefer a weapon-less world, you can uphold the Constitution as you see it even though its not the best, in your opinion. And if you really think its best you try to get the Legislature to ammend the Constitution to make your view the legal one. That is, in my opinion, the way the Judiciary was meant to run and the way the Constitution was meant to be used. And thats why we can ammend it, so that the rule of law goes along with the wishes of the people, making it a democracy.

At 2:23 PM, Blogger J. Morgan Caler said...

“You can interpret the second amendment many ways, depending on your ideology for sure. But if you're being objective you cannot come to the conclusion that the only people who should be allowed to own weapons are the military and police.”

That is simply untrue. The opening phrase - A well regulated Militia, being necessary to the security of a free State... – probably means just what you said an objective person cannot conclude. Now, I actually oppose gun control in any radical form, but I don’t think it is non-objective or unreasonable to interpret the 2nd ammendment right to bear arms as contingent on membership in a militia and only then in the absence of a professional army. And I don’t want to have a huge debate about gun control or the 2nd ammendment, but I do want to make the point that you contention (“if you're being objective you cannot come to the conclusion that the only people who should be allowed to own weapons are the military and police”) proves that ideology cannot be separated from interpretation. Likewise, interpretation cannot be separated from the role of the judiciary.

At 2:41 PM, Blogger RedHurt said...

I'm still sticking with standing here too - Charles said there's no way a judge can ever say, "well, I don't think this is best for the country, but it's the law, so I'm sticking with it." Marshall does indeed make the point that interpretaion comes with constitutional law, but he also implies by referencing possible conflict between law and the constitution that sometimes there arises an ideology which is felt by some judges to be the correct course for the country (and is thus put into law) but is opposed to the constitution. Marshall says then that it is the role of the Supreme Court to rule in favor of the constitution and against lesser laws when the two are in conflict. I see no reason why a judge couldn't believe that the lesser law was "better for the country" than enforcing the accepted interpretation of some section of the constitution. Standingout and I are simply aruging that he is required to do so anyway.

Examples? What about the recent Eminent Domain case? I haven't read the briefs of the assenting judges, but it seems to me they clearly ruled in favor of what they perceived was best for the country and against the constitutional right to own property.

At 2:44 PM, Blogger RedHurt said...

I'm not saying interpretation isn't involved - only that the accepted constitutional interpretation can come in conflict with what the judge personally believes is best for the country, and in those instances he should side with the constitution. Right?

At 2:45 PM, Blogger RedHurt said...

And I absolutely completely and totally see no reason why this:

"Liberals say that "evolving standards of decency" mean that in a free society a woman should have access to an abortion; they're correct."

is obvious at all. I know it's not your point so it's not worth arguing here, but this is a horrible example.

At 3:06 PM, Blogger J. Morgan Caler said...

redhurt, do you really think that the Supreme Court just said, “well, we know the constitution protects private property laws, but we don’t think that is best, so we aren’t going to worry about that.”? No! They are interpreting the constitution and its historical interpretation in such a way that the constitution supports their opinion. It isn’t overt or subversive; it is just how they read the document. I disagree with them, but it’s not like they are avoiding constitutional questions in favor of national interest or something.

Look, the Justices do not have the power to rule on things that are extra-constitutional – which is why they don’t do it – but they have the power to break with “the accepted constitutional interpretation” if they think it is wrong. Here is the catch: Judges don’t think that something unconstitutional is in the best interest of the nation: they aren’t allowed to by the nature of their oath. The question, for them, is what the constitution means, which is determined by what they think is best for the country as well as a whole host of other intellectual commitments they have. And that’s the whole point - that is why it is silly to claim that some Justices are ideologues.

At 3:21 PM, Blogger CharlesPeirce said...

redhurt, you gave me an example exactly backwards of what I was looking for:

"...they clearly ruled in favor of what they perceived was best for the country and against the constitutional right to own property."

I want an example of them ruling AGAINST what is best for the country, in favor of what's constitutional, which I have not yet been given.

redhurt, I know the line about abortion is a contentious point; what's it a horrible example of? I think it's a FANTASTIC example of a contentious point, a paradigm case, if you will. But for the sake of the good debate we've got going, I retract the "they're correct"--it's not something I believe in strongly enough to argue about, and it's absolutely irrelevant to this post. I think we would all agree that there's no constitutional right to abortion, though, which I think is the more important point.

At 3:23 PM, Blogger CharlesPeirce said...

redhurt, you also wrote:

"The accepted constitutional interpretation can come in conflict with what the judge personally believes is best for the country, and in those instances he should side with the constitution."

This, stated succintly by you, is 1) what I think never happens, and 2) what I am open to being wrong about if anyone has any examples.

At 4:43 PM, Blogger StandingOutInTheCold said...

Here is at least one example of a Justice making a decision based on law when it goes against his personal belief. The relevant paragraph (from the Lawrence v Texas sodomy law hearing):

Chief Justice William H. Rehnquist and Clarence Thomas also dissented. Thomas wrote a separate opinion in which he found the Texas law "uncommonly silly." He wrote that: "Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." He said that if he were a Texas legislator, he would vote to repeal the law. However, he could not agree to strike it down as unconstitutional because he found no guarantee of privacy contained within the words of the U.S. Constitution.

At 4:46 PM, Blogger StandingOutInTheCold said...

This doesn't mean that his ideology didn't lead him to his conclusion, but it shows that at least sometimes a Justice will vote for the Constitution rather than what seems best to him. He's not making the law, he's just deciding whether or not the law is legal.

At 5:05 PM, Blogger CharlesPeirce said...

Right--that's exactly what I was looking for. Thanks.

At 5:24 PM, Blogger Virtutis said...

Another good example of that is with the new Supreme Court nominee, Judge Roberts. He upheld the arrest of a 12-year old girl for eating French fry in a DC train station (it was a unanimous decision). I don't think any judge on that court thought that that was a law that was good for the country, they simply realized that the law was constitutional. The ruling itself does criticize the law as silly, but affirms its constitutionality.

By the way that law was repealed very shortly after the incident. There is nothing like a crying 12-year old girl to focus opposition to legal excess.


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