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Maarten

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I watched part of a heritage foundation lecture by Robert Bork yesterday, and it raised this issue in my mind. He is pretty clearly a constructionist (I think that's what it is called) and says that judges who are supposed to interpret the meaning constitution and the law should not arrive at conclusions that are completely unsupportable from the facts they start out with. He gave some examples of cases where one supreme court justice basically got to decide what direction the country's laws were going to, and that when such decisions are made based on reasons other than what the constitution specifically says they are overstepping their power.

I know that strict constructionism is incorrect, because ultimately the law (and consitution) should be based on individual rights. But is it really the judge's responsibility to do so? I think he has a point when he says that when you depart from literally interpreting the constitution you enter an area where anything seems to go fairly quickly. At least, it is much easier to arrive at incorrect decisions when your decisions are no longer based on the original document you are supposed to uphold.

That brings me to my question: Should these issues of individual rights be decided by the judicial system, or is it properly a responsibility of the legislative branch by proposing constitutional amendments? It seems to me that there is a reason why it was incredibly difficult to amend the constitution in the first place. The document is so powerful that it could very easily be misused by people trying to further their own social or political agenda. When a justice concludes that even though the constitution says X, it should not have said that, and instead concludes that Y is true, how is that proper when it is his job to interpret the constitution?

Would it not be a much more robust system if the Supreme Court had to base their decisions on the actual meaning of the constitution? The only point of having such a document is if you're going to actually respect it as the fundamental basis of a country's laws. We already have a mechanism for amending the constitution if we want to address sections the constitution is either mistaken or unclear on. I think it really is an area of concern when Justices can basically ignore what the constitution says, for better or for worse. It still sets a precedent that they are not actually basing their decision on the constitution they are supposed to interpret.

So on the one hand I can see that ideally, it would be good if a Justice can uphold individual rights even where the constitution remains vague or contradictory. But because we by no means have the ideal justices nowadays, a more strict interpretation of the constitution with a more active role for amendments (if something really needs to be addressed) seems much safer to me as a way of maintaining the original structure of the republic.

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Tara Smith has a good article here that lays out the philosophical problem with "originalism", and it isn't even based on presumptions about individual rights (which is more a problem with the specific theories of originalists). The real issue is that law has to be interpreted, and the question that Smith raises (and answers, IMO) is how it should be interpreted.

The fact is that the originalists make stuff up like the living-law-ists do, they just make up different things and according to different rules. I tend to think that the right-wingers "follow the text" more closely than the left-wingers, but neither side deserved accolades for objectively applying the law as it is written. The basic weakness in the right-winger's position is that the constitutional protections of individual rights are too weak and vague in their wording, which leads to the misguided credo of looking at the "original intent" of the law and Constitution, rather than the objective meaning of the words. A related point is that judges hate finding that a law is unclear, and therefore they will invent a specific meaning when the wording is open to numerous readings.

Under actual American practice, the principle is that the legislature is responsible for enacting the laws which protect or violate rights, and the courts detemine the actual outcome based on the wording of the law. However, the legislature overtly abdicates responsibility on such matters as a matter of course, by writing lousy laws that cannot be literally interpreted. They will sometimes leave a term undefined just so they can get the damn law passed and then leave it to the courts to decide what "original sentence" refers to.

It's hard to find a clear example where justices ignore what the Constitution "actually says". Foul though Kelo was from the perspective of individual rights, it does not contradict what the Takings Clause "actually says". The "actual wording" of the First Amendment, specifically "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", is literally open to absurd interpretations. It literally means that if you belong to a voodoo cult that practices involuntary human sacrifice that Congress can make no law prohibiting from killing people as part of the free exercise of your religion. This would be an absurd result and clearly not what was originally intended, but if you just go with the words, it's a huge problem.

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So on the one hand I can see that ideally, it would be good if a Justice can uphold individual rights even where the constitution remains vague or contradictory. But because we by no means have the ideal justices nowadays, a more strict interpretation of the constitution with a more active role for amendments (if something really needs to be addressed) seems much safer to me as a way of maintaining the original structure of the republic.
In what contexts would one use this principle? If one is using it to decide whether to support a particular judge's appointment to a court, then why cannot one simply decide based on that particular judge's past support for individual rights? In other words, rather than looking for the terms in which that judge is describing his judicial theory, why not look for what he actually meant by it.

Suppose, for instance, I use the rule: support any judge who thinks that the primary original intent of the constitution was the support of individual rights (life, liberty and the pursuit of happiness), particularly seeing the constitution as a way to protect the individual from the tyranny of the majority. How would that be any more or less difficult a principle to apply in practice?

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I see what you're saying about both sides there. I guess that leads me to a different question. What is exactly the purpose of the judicial branch of government in an ideal society, and specifically that of the Supreme Court(s)? Isn't the Supreme Court's purpose to be the final authority on the interpretation of the Constitution? If a Justice does not actually base his verdict on the Constitution but on some other rationale, doesn't that contradict the very nature of his position? How is it a good thing if they can do that and get away with it?

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In an ideal system, the essence -- i.e. the protection of individual rights -- would be stated as being primary. However, a judge might still need to decide whether some government rule is a violation of a right.

There are some -- e.g. Scott Gerber -- who say that the U.S. constitution is written primarily to protect individual rights. I'm not qualified to debate the merits of the case (though I'd love it to be true). Still, if true, it could be viewed as one type of "originalism"; and, I suspect many laymen think of this when they think of "originalism". Judges like Scalia would dispute that version. They might point to actual laws at the time that contradicted the notion. I don't buy their argument, but it is a strong one.

For current judges in the U.S., my take is this: the version of interpretation that I'd like to see them follow is the notion that the original constitution was written to restrict the role of government and to protect individual rights. I definitely do not expect any judge to overthrow any rights-violation that the constitution clearly allows. So, for instance, if the constitution disallowed women from voting, I would say that a constitutional amendment would be required. However, where the constitution is silent, judges should rely on the presumption of individual rights that they can find within the constitution, and not fall back on lesser, older statutes, nor on old practices.

Over time I have come to the opinion that the SCOTUS is like a super-senate (probably always was) and will remain that way for the foreseeable future. The judges can be thought of as people who change with the times, and always will. Regardless of what change they make, they will explain how it is a form of correct interpretation. It is "super" in the sense that it is slower to change than the senate. However, even at that slower pace, it still follows the changing ideology of the times. So, most judges would say that prohibition of alcohol would require a constitutional amendment, but few would say that the prohibition of marijuana requires one... go figure!

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So basically, something like the clause that allows congress to regulate interstate commerce would have to be amended constitutionally? Do you think it would be wrong in that case for a Justice to disregard that clause in a decision because it is against individual rights, or would such a Justice be wrong because he is clearly contradicting the constitution?

It seems to me that at some point you have to say that you must actually follow the constitution as it is written, because otherwise if people started to ignore it (for however good a reason) you'd still set the precedent that the government can ignore certain clauses in the constitution. I believe that in that case it would be better to be consistent with the constitution in judicial verdicts and work on amending it, rather than disregarding the literal meaning of the constitution because it is wrong.

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What is exactly the purpose of the judicial branch of government in an ideal society, and specifically that of the Supreme Court(s)? Isn't the Supreme Court's purpose to be the final authority on the interpretation of the Constitution?
It is to determine how the law is to be applied; that could be to compare the particular facts at hand and the law and determin who prevails in a dispute, or to pronouns general rules regarding any matter of law. The Supreme Court's purpose is to be the final authority, and it is not at all limited to constitutional matters. I don't know if there are any computed statistics on this, but I think most cases that go before SCOTUS don't raise constitutional issues.
If a Justice does not actually base his verdict on the Constitution but on some other rationale, doesn't that contradict the very nature of his position?
No. An example is NIX v. HEDDEN, 149 U.S. 304 which was a simple matter regarding interpreting the language of a tariff act (specifically whether words that have no special meaning in trade and commerce should be given their ordinary meanings or their technical scientific meanings). Or, BRONSTON v. UNITED STATES, 409 U.S. 352 raises no constitutional issues, and decides whether nonresponsive true testimony constitutes perjury. The basic principle governing judges is that their decisions must be consistent with established law (which includes statutes, regulations, the constitution, and previous judicial findings). That means that when the law (meaning all of the relevant law, not just the specific statute) is not absolutely unambiguous on some point, a judge has some freedom to find one way or the other. Because of our principled opposition to legislatively correcting errors in statutory wording, it is usually left to judges to correct the errors.
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Supreme Court's purpose is to be the final authority, and it is not at all limited to constitutional matters.

I thought for a long time that they only dealt with constitutional issues but clearly I was wrong. I think this is primarily because just about the only time you hear about the SCOTUS making a decision it involves a challenge based on constitutional rights.

This clarifies more fully what their jurisdiction covers;

According to the Constitution (Art. III, §2):

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and Treaties made, or which shall be

made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers

and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies

to which the United States shall be a Party;—to Controversies between two or

more States;—between a State and Citizens of another State;—between Citizens of different

States;—between Citizens of the same State claiming Lands under Grants of

different States, and between a State, or the Citizens thereof, and foreign States, Citizens

or Subjects.

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So basically, something like the clause that allows congress to regulate interstate commerce would have to be amended constitutionally? Do you think it would be wrong in that case for a Justice to disregard that clause in a decision because it is against individual rights, or would such a Justice be wrong because he is clearly contradicting the constitution?
A judge definitely has to assume that the government has some power to regulate commerce "among the several states". It says so in the Constitution. I don't see how he can do otherwise -- he is in the position of a police officer who pledges to uphold (say) drug-laws.

While I may not like that clause, I think a reasonable judge would apply it as valid law. However, he would not take it to imply the government can do whatever it feels like. So, he would not think the government should use that clause as a pretext to regulate manufacturing under the guise of commerce, nor to use it as a pretext to regulate commerce within a state. That's not to say that he should unwind every precendent; but, only that that should be his "originalist" philosophy.

The intellectual fight then becomes twofold: what does the constitution really mean (the medium-term battle); and, changing it for the better (extremely long term).

Consider this though: the GOP judges pooh-pooh the Democrat judges for allowing the government to control the economy. Yet, if one reads the constitution, looking for this power, you will find it sooner than the power to prohibit abortion or to restrict stem-cell research. Yet, it is the anti-abortionists who pretend to be the "originalists".

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