Let all the poisons which lurk in the mud hatch out
I tend to take a pretty serious beating from libertarians where my views on the role of the judiciary are concerned.
I am an unapologetic constructionist. I believe that the interpretation of legal statutes should be strictly in accordance with the intent of their framers. I am no fan of the concept of a “living constitution”; I tend to believe that such a concept leads to the inexorable expansion of state power through the extension of its authority beyond the explicitly enumerated powers. I believe that an activist view of the powers of government leads inexorably to the overriding of explicit prohibitions on governmental action, such as the habeas corpus guarantee. I agree with the Jeffersonian idea that the legislative branch was intended, within the narrow scope of constitutionally enumerated powers, to be “first among equals” and that the judiciary was not intended to be nearly as powerful as the other branches.
This translates to a general belief that most governmental power, to the extent that the government should have powers, ought to be vested in the people’s elected legislative representatives. This creates problems for contemporary libertarians in that the legislatures tend to be slave to ephemeral public passions and to be poorly insulated from factional and corporatist pressures. At the extreme, you have actual direct democracy through referendum and citizen intitiative, where these passions are of still greater influence. Consider the situation in California, where the state’s gay marriage policy is at risk from a public referendum, the advocates of which tend to say things like this:
The eyes of the world are on California. We’re watching California and the vote on marriage. Because if you fail there to stop it, if you fail to stop it, what will be unleashed across the world will be a spirit worse than radical Islam.
Yes indeedy. Hospital visitation and inheritance rights = forced female clitorectomies and suicide bombings. Charming folks, no? And they’re starting to look like they’ll win at the polls, resulting in a situation that inarguably diminishes individual liberty in that state. (Hat tip to Kip on this one, btw.)
I find that my principles re: the judiciary put me in this position pretty frequently. To cite another example, I’m a moderate on abortion, but my belief that Roe v. Wade ought to be overturned would, if implemented, mean I’d live in a state where abortion would be restricted far more harshly than I’d deem justifiable. How, then, to square a belief in individual liberty with a judicial ethic that would probably diminish it?
I think that the main reason lies in the concept of rule of law. The law derives its power from perceived legitimacy; from voluntary compliance or normative obedience rather than through actual enforcement in the face of violations. There simply aren’t sufficient enforcement resources to consistently bring about compliance with laws which are seen as illegitimate in their origins. And this, in turn, makes the process by which laws are created extremely important.
It is not necessary for everyone to believe in the legitimacy of any particular law; however, there does have to be a general perception that the rules have their origin in the principle of popular sovereignty rather than in the will of an elite. This makes it very, very difficult for people to accept regulations that are imposed upon them in explicit defiance of popular will.
And this, it must be emphasized, is true regardless of whether the law in question is a good idea or a bad one. My own home state faces a Supreme Court that has in effect imposed tax increases for public education based on the state Supreme Court’s declaration that the existing finance formula is inadequate to meet the state constitution’s guarantee of a quality education. It is, in fact, my opinion that my state’s public education formula is indeed flawed in the ways the court describes. But the fact that the court gives me the outcome I want does not outweigh the general contempt for the law–and the specific contempt for education financing–that emerges from the process.
What results is a general perception that issues such as rights and education are the exclusive purview of the courts, and not fit matters for public debate and active citizenship. They become, in effect, entitlements that we run to the courts to protect, rather than principles towards which we seek to build public consensus. The abortion debate is typical in this regard, in that the pro-choice lobby has focused all of its resources for thirty-plus years on preserving abortion legally. As a result, the field of public opinion has been largely conceded to abortion opponents, and even left-wing democrats find themselves forced to campaign on platforms that advocate that abortions be minimized.
It is actually the ugliness of the process–emblemized by the outrageous rhetoric of the opponents of gay marriage in California–that I tend to prize most. Because these people, and their arguments, don’t just disappear the minute the courts make a ruling. They certainly didn’t do so in the case of abortion. It’s best that these arguments be exposed to the light of day and dissected in full public view rather than being left to fester under the carpet.
Consider the civil rights movement. Yes, there were initial legal victories that spurred the movement, but many of the principles protected by those victories–the alleged end of segregation in the schools, for instance–have been rendered meaningless by entrenched public resistance. The true victories have involved the building of consensus through such measures as the 1964 Civil Rights Act.
It is not enough that liberty be promoted and protected. We need a liberty that is politically sustainable. It is necessary to promote and protect freedom in such a way that it becomes part of the public ethic and a common goal of the citizenry at large. Otherwise, our rights will be forever dependent upon the whim of judges.
I think you are selling short the benefit of elitism, detachment and aloofness of the judiciary. By design the judicial branch is insulated from fleeting public opinion and crisies. The benefits of this historically are fairly plain. All too often it has been the executive and legislative branches who diminish liberty. This is directly related to public opinion shifts and calls for action.
Let me be clear: I am not saying that the judicial branch is blameless; it certainly has blemishes of history.
Particularly in the realm of opposition to the forfiture of rights and liberty, there is a very distinct and important role for the courts to play. I tend to agree that liberties cannot be imposed effectively from on high by an elitist clique of nine. Court cases can the catalyst of positive reform, but they’re certainly not the best path to liberty. Without long term public support and consensus, liberty will flounder. That being said, the group of nine has an important role to prevent the prevailing polticial whims of the moment from negatively diminishing liberty.
Comment by Cameron — 10/9/2008 @ 1:13 pm
I agree with the sentiment that you need public support for laws for them to be effective.
This seems to be a different issue than that of how things are supposed to work. I would say that the Constitution is supposed to be an important authority. Whenever the legislature does something not allowed by the Constitution, the judiciary is supposed to overturn it. However, if there is enough support for what the legislature has done, they can amend the Constitution, so in this sense, the legislature is more ‘powerful’ than the courts.
The Civil Rights Act of 1964 (and the subsequent add-ons) is facially not Constitutional. On the other hand, Jim Crow was also clearly not Constitutional. If the courts were working properly (which they almost never due, since almost everything faces rational relationship instead of strict scrutiny) both would have been disallowed.
Properly working courts slow down the rate of change of laws and act as a counter against, as Cameron says, “prevailing political whims.”
Comment by Redland Jack — 10/9/2008 @ 1:47 pm
I have a few more thoughts that might get to the heart of your argument Rojas.
You’re right in worrying about the sustainability of liberty enforced by the judicial branch of government. They shouldn’t be the only ones standing up against bad laws and actions of the government. The thing is, they’re important beyond measure when rest of the government is in the crapper.
You correctly note that moral authority is lost when liberty is protected by elites in black robes. As I said before, if you think of them as a buffer against bad desires of the moment, their role becomes clear. A buffer is not much of a dam, however. There is only so much that the judiciary can do. Eventually, as Redland Jack noted, the constitution can be amended and the rules changed.
Additionally, you’re absolutely right that the drive for liberty must come from the public and by extension the legislative branch of government. The problem is that when no such drive exists, there are only the insulated people of the judicial branch able to stand up against reckless anti-liberty policies.
I guess it boils down a a short-term versus long term thing. In the short term the judicial branch can act as an impediment. In the long term, no amount of judicial power can withstand a disinterested or liberty hostile public, nor should it.
Comment by Cameron — 10/9/2008 @ 3:31 pm
I think I’ll have to throw in with Cameron here too. Put perhaps another way to look at it is I think there are certain rights that are inviable. I.e. we have them whether or not the branches of government and our elected representatives choose to recognize them or not.
I could go beyond social contract to argue that point (i.e. we have these rights whether the constitution or anybody else recognizes them not), but even as a matter of social contract, the very basis of it is an agreement on a few central, fundamental tenets, without which there is no contract. They’re set upon as the foundations on which our government itself is created and formed, and are thus absolute over even it (all of it). They can, of course, be changed, through the agreed-upon process, which is appropriately nearly prohibitively arduous. But short of that, they’re, well, unalienable (or, in the Lincoln Douglas phraseology, natural rights).
So I think you’re coming at this backwards.
I do agree that the judicial branch extends into policy-making at times, and one can, of course, disagree with any given decision (indeed, if nobody was liable to, there would be hardly a need for a judicial branch at all, now would there?), which is where checks and balances come in. But there’s a reason why, historically, challenges to encroachments on civil liberties are made in the courts first: that is what they are designed for. And if they decide, in their role as referees for whether the representative branches are acting on legitimate authority (i.e. our American social contract, the constitution) or not, that the will of the people and the elected representatives is wrong) or at the very least, going through the wrong channels, it is not just good that that they strike those abuses down even in the face of non-consensus with the public, it is their duty.
In fact, it often strikes me that opponents of “judicial overreach” are the ones seeking to game the system. Take the gay marriage cases, for instance. In every ruling on the matter, the courts are not saying “this society has to gay marry people!”. What they are, legally, saying, is “if you as a society don’t want to gay marry people, you have to change the rules that you, as a society, laid out, because as the rules are currently written, this is in violation of them”. If there is such a consensus against any given liberty (say, the right to drink), or any constitutional encroachment of any given liberty (say, the rights of women or non-whites), the public is free to get together and, in a truly consensual fashion, rewrite that rules. But short of that, tough titty.
Gay marriage opponents have gotten their way on exactly this point in the states where there is enough of a consensus to do so. In states where there has not been enough consensus to do so (or, on the national (i.e. federal (fuck you Bush!)) level), they have failed. And this whole “judicial overreach” canard is them basically saying that, since they can’t play by the rules and win, it’s the fault of the referees. It’s the definition of “working the refs”, whenever “judicial overreach” is invoked, in that it is an attempt to try to get the referees too afraid of public outcry to actually perform their duties. To which I say again: tough titty. Again, if people weren’t liable to disagree on the interpretation of the rules, there wouldn’t be any need for referees in the first place. The solution to the problem is not to fire all referees and revert to a tyranny of the majority, but rather, to work appropriately in the system (guess what: there are ways to changes the referees, too! We got it all worked out! Really! Judges are appointed, and can be impeached! Some people way back when thought of all this shit!).
There is nothing that cannot be done in that vein, with enough public consensus. One could turn America into a monarchy if that’s what the public really, really wanted. But that it is difficult is about the only bulwark we have built in to try to make sure those unalienable right stay unaliened.
Comment by Brad — 10/9/2008 @ 4:02 pm
All that said, your point is certainly well-taken that people’s emphasis should be on public consensus over judicial veto. But that, to me, doesn’t mitigate the fact that we do indeed need a robust and, yes, activist judiciary.
Comment by Brad — 10/9/2008 @ 4:22 pm
something something something, Marbury v Madison, something.
Comment by Mike — 10/9/2008 @ 6:32 pm
I think you risk a beating by libertarians of a certain stripe, but there are whole sects of libertarians that are exactly in line with your thinking. I am not one of them.
My understanding is that “strict constructionist” (or your variant “unapologetic constructionist”) is viewed as a largely meaningless political term and is avoided by most modern constitutional scholars in favor of some variant of “originalist.” If I recall correctly, Scalia harps on this a lot. While certainly not as bad, the term is becoming a lot like “judicial activism” another nearly meaningless political phrase that usually translates into “rulings I, as a conservative, don’t like.” One never hears “Judicial Activism” screamed when the courts uphold a social conservative value at the expense of popular liberal legislation, such as the striking down of Oregon’s assisted suicide law. Both terms imply a lot, mean little, and cause the glazing over of eyes amongst a lot of us civil libertarian armchair constitutional law watchers. While you have laid out a reasonably detailed and nuance constitutional philosophy here, too many of those who bandy about these loaded phrases do not, which is a long way towards saying that I think, in pursuit of your arguments, you would be better served to go with “constitutional originalist” and carefully meter your use of “activism.”
Nor do I accept that orginalism necessarily leads to an assumption that the legislative branch is “first among equals,” but even is so, “equals” is directly contrary to “the judiciary was not intended to be nearly as powerful as the other branches.” That whole sentence is schizophrenic.
I generally concur with all the other commenters regarding the immensely important power-checking role of the judiciary, without which The State would continue to vote itself ever increasing power. Your proposed reduction in the judicial strength would merely accelerate this. Time after time, the judicial branch reigns in or removes a State power grab, thereby increasing individual liberty. Where they make a bad decision, the have merely endorsed or permitted an increase in power by The State, not initiated it. Granted, such decisions serve as precedent used by other agencies/governments, but they also frequently serve as rallying points around which citizens may pass new, liberty protecting legislation, such as seems to have happened quite a lot in the wake of Kelo. I see Roe vs. Wade as an outlier, not the norm here. I’ll go further and say they usually have the opposite effect in the long term, that by pushing into the common domain the legality of a certain liberty or right, they accustom the general population to that liberty or right. For every citizen who becomes polarized after a liberty supporting court decision due to his anger at “unelected judicial fiat makers,” two or three more will come to realize that it was not nearly as calamitous as they, or their parents, were lead to believe.
Far too frequently, libertarians and conservatives that follow the “strict constructionist” line of thinking, supposedly in favor of liberty, are perfectly willing to reduce individual liberty in favor of 50 different kinds of tyranny. Supporint state’s “rights” is hardly libertarian.
Comment by Jack — 10/9/2008 @ 6:58 pm
Man, it’s posts like this that make me glad I never tried to join this blog. The quality of discourse and presentation of argument here is, like, rilly good. I don’t have enough experience thinking about these issues to contribute to the discussion but I wanted to say that I’m grateful for the post. The daily discussion of political campaigns is great fun, but this kind of this is what distinguishes this place for me.
Comment by Jerrod — 10/10/2008 @ 12:12 am