Strict Constructionism and the next prez

[Qwertz]

Takings law is interesting. Adhering "strictly" to the language of the Constitution, it is acceptable for Gov't to deprive citizens of property without compensation so long as a) there is due process, and it is not for public use. The takings clause (which guarantees just compensation) applies only to public use takings. So on a strict construction basis, a State could set up a board whereby one private citizen could petition the board to seize another's land and give it to him. So long as the board was procedurally adequate, it would pass a strict textual interpretation. Luckily, broad readings of "public use" and "due process" (see e.g. substantive due process) close the loophole. But once "public use" is stretched to cover this situation, it's just a short slip down the slope to allowing public use takings (with compensation) to achieve the same effect (transfer of property from one private citizen to another).

Balancing tests are part of all jurisprudential schools, but then all jurisprudential schools are also positivist. Balancing tests are not compatible with objective law, because they leave actors in the position of not being able to independently and accurately evaluate the legality of their actions before the fact. No quantum of facts available beforehand can predict how the judge will 'balance the equities' when it comes down to it.

The Mass. Court technically didn't create a right to gay marriage. They said Mass.'s marriage statute was unconstitutional on equal protection grounds, but refused to strike it down (as no one had asked for that). Technically, the ruling had all the legal effect of urinating in the air currents. Declaratory judgment rulings of this sort are nearly entirely political. The court told the legislature to come up with a solution in 180 days, but Mitt could have just as easily taken a page from Andrew Jackson* and ignored the order - the court had already decided not to strike down the unconstitutional, straights-only marriage law, and had no legal authority to order the legislature to pass any law. The plaintiffs in the case weren't seeking damages, either, so really, nothing would have happened if the legislature and Mitt had ignored the court. Nothing legal, anyway.

-Q

* Note that Jackson referred to Chief Justice John Marshall in his alleged invective, "John Marshall has made his decision, now let him enforce it," and the Chief Justice of the Mass. Court, who wrote the opinion, is Margaret Marshall.

[Edit: Blasted smilies!]

Edited March 27, 2007 by Qwertz

[Korthor]

If "balancing tests" are incompatible with objective law (which I've always suspected), is there any alternative for interpreting when the government can violate rights for emergency reasons. I can't think of any.

Yeah! That means Objectivism is opposed to Gitmo, although some on this board advocated locking up all Muslims after 9/11.

Or am I missing something? Is there an objective standard for judicial "deference" to the executive besides, "Hey executive, you can't create your own judicial system in the name of naitonal security."

[Qwertz]

The alternative to a 'balancing test' is an objective law. The 'balancing' is already done by the legislature and vetted by the courts. Where the objectively determined conditions of emergency are met, the objectively delimited, otherwise-potentially-rights-violating actions can be taken.

Balancing tests are not required to justify detention of enemy combatants, or to justify their torture, either. Also, note that my statement about balancing tests and objective law is not a statement about Objectivism. Rand did not promulgate a complete philosophy of law. She said some cogent and valid things about crime, justice and the like, but she did not delve into the intricacies of legal philosophy. Ergo, there is no Objectivist position on balancing tests.

The problems with Gitmo and torture arise because their roles are not objectively defined. This isn't to say that they cannot be objectively defined. The question of whether they can be objectively justified is separate, and the material of another thread. Also, the Gitmo problem deals in international law and Geneva Conventions (specifically, when and how special jurisdiction courts are created), which are a whole other kettle of fish.

-Q

[Korthor]

The fact that military tribunals are "objectively defined" is irrelevant to their constitutionality. It comes down to a question of "deference": how much should Congress and/or the Courts defer to the Executive on such matters. There are several options:

A. The Exec can do what it wants to POWs/enemy combatants as part of its War Powers

B. The Exec can create its own court system without due process of law as long as it gets consent of the Congress

C. Special courts (e.g., courts martial) are OK as long as basic due process safeguards are protected

D. Anyone on trial has the right to a civilian court.

The Court seemed to come down for option B last summer, although their are still appealate courts who are thinking about option C. There is no "objective test" for determining between options A/B/C/D in the current constitutional context because the "war powers" of the executive, the supervisory power of the Courts, and the ability of Congress to control the judiciary were not will spelled out in 1789.

Thus, courts have to make a determination concerning the degree of "deference" that the Courts owe to the Congress and Executive, Courts owe to Congress, and Courts owe to the executive. For example, if the courts chose option C or D they would be saying that judicial enforcement of due process trumps Congressional will.

Is there an alternative to deference? The only one I can think of is explicit articulation concerning these controversies in the Constitution. Since that won't happen any time soon, I tend to favor protection of civil liberties: after all, in a world of non-objective law, shouldn't we err on the side of the individual against the government?

Edited March 27, 2007 by Korthor

[Qwertz]

You're asking a different question than I've been addressing. You're asking what to do to get the best result given a non-objective legal context. I've been suggesting how an objective legal context would solve the problem. My point up to here has been that a) the particular school of judicial interpretation to which a judge (or executive candidate with judicial appointment power) ascribes is really rather meaningless in determining who will best uphold rights, because none of them will, and http://forum.objectivismonline.com/uploads/emoticons/default_cool.png' alt='B)'> this is so because legal positivism is predicated on the State as the ultimate source of power, and the law as trying to restrain it, as opposed ot a more objective view of government being granted specific, enumerated powers, and the law as the means of ensuring those powers are protected. I am not, at present, up to the task of analyzing the various ways of coping with non-objective law, and must defer to someone with more knowledge and fewer pages of my socialist contracts casebook to read. Though if the topic is to be specific exactly to the Gitmo issue and how it should have come out, I'd suggest a thread split.

-Q

[aleph_0]

All appelate judges do: that's what stare decisis implies.

Stare decisis only implies that you follow the reasoning provided by previous judges except in case of eggregious error. I have no problem with stare decisis, except when such previous decisions invent laws not on the books or ignore ones that are--and, in extreme cases, when such decisions construe the laws broadly.

To know what kind of judges he will appoint, so that we can know what kind of decisions they will hand down.

We know what kind of judges he will appoint: Those that uphold standing law. So how will they rule on any particular case? Read the laws, investigate the relevant context, and provided you are dealing with a law that can be interpreted one way and only one way, you will know with a good deal of accuracy (here, again, we face the problem that some judges might be irrational even when trying to be rational and constructionist--and much to your possible shock and awe, you might do the same, though that is truly, ever so impossible to imagine...). Unless, of course, you want to argue that words don't have means, in which case constructionism is impossible. Would his judges uphold Roe v. Wade? I don't know, I'm not a legal scholar. Something tells me neither the 5th nor the 14th Amendments were designed to apply in that way and that due process was originally taken to be a strictly procedural notion not limiting the legislature--but maybe it does justify penumbra protection. I would have to research the matter more fully.

I want a judge that protects rights. I guess your fundamental error was in starting from the central principle that the purpose of a judge is to apply the Constitution. But that is false. The purpose of a judge is to make a just and reasoned decision in matters of law, especially with reference to the function of government, which is the protection of the rights of individuals.

Your error is being too short-sighted. If a judge rules contrary to the Constitution or standing law, he has violated the restriction on ex post facto laws and has hence violated our rights. A citizen in a nation of laws must know what he and others can and will be charged with, and under what circumstances.

In addtion, I started this thread exactly in order to try to convince people like "aleph 0" that there out to lunch when it comes to judicial interpretation. What's wrong with judges "legislating from the bench"? It's not like the legislature is doing a great job.

Whether you agree with the laws on the books is irrelevant. They must be stable and predictable in order to be just. To introduce new laws or invalidate standing laws that are consistent with the state and federal constitutions eliminates the rule of law.

P.S. Stare decisis is just the idea that judges should follow precedent. It is sometimes good strategically (without it, Roe would have probably been reversed in the Casey decision), but it is not and end in itself... although aleph 0 would probably think that it is.

You seem to construe me as a legal positivist, which I'm not. I agree that the central concern of a nation is to protect rights--and that is why I believe in constructionism.

Yes Guliania has been pro-choice, but now he's entering the GOP primary so he has to wrap his lips around the throbbing member of the Christian right in order to get the nomination. That's why he's adopted the line about "strict constructionism." In a weird way, it is the inverse of the standard Christian Democratic line "I think abortion is immoral but don't believe it should be outlawed because of my constitutional principles."

Giuliani still affirms that he is pro-choice. He said explicitly in a Hannity & Colmes interview that he believes it ought to be the decision of the mother.

Takings law is interesting. Adhering "strictly" to the language of the Constitution, it is acceptable for Gov't to deprive citizens of property without compensation so long as a) there is due process, and it is not for public use. The takings clause (which guarantees just compensation) applies only to public use takings. So on a strict construction basis, a State could set up a board whereby one private citizen could petition the board to seize another's land and give it to him. So long as the board was procedurally adequate, it would pass a strict textual interpretation. Luckily, broad readings of "public use" and "due process" (see e.g. substantive due process) close the loophole. But once "public use" is stretched to cover this situation, it's just a short slip down the slope to allowing public use takings (with compensation) to achieve the same effect (transfer of property from one private citizen to another).

I think a distinction should be made between laws that restrict individual action and laws that restrict government action. I don't have a problem with the courts restricting government action, and so in that way "legislating from the bench", because that does not violate the restriction on ex post facto laws. It is only when judges introduce or rip away constrains in the private sphere that one needs such stability.

[DavidOdden]

If a judge rules contrary to the Constitution or standing law, he has violated the restriction on ex post facto laws and has hence violated our rights.

That's a pretty spectacular inversion of the concept "rights", but it does explain a lot about your argument.

[aleph_0]

The restriction on ex post facto laws is a spectacular inversion of the concept of "rights".

Interesting.

[softwareNerd]

The restriction on ex post facto laws is a spectacular inversion of the concept of "rights". Interesting.

In the sense that you're saying rights are protected by upholding laws that violate rights (and those that do not violate rights).

[Korthor]

1. So Aleph 0 is saying that it violates my rights if the Courts were to rule against precedent or the legislature? So the in Lawrence the Courts violated the "right" of the Texas people to outlaw gay sex? I think this explains everything that's wrong with conservatives who think they're Objectiists. Hey, as long as I know in advance the government will lock me up for sex, then I guess everything is on the up and up.

2. Although I've already said if a few times, Guliani's "pro-choice" position is completely irrelevant. If he appoints strict constructionists, they will rule against Roe.

[softwareNerd]

Aleph_0 is making something similar to a "rule of law" argument, which goes like this: some laws violate rights, but each of us should not decide for ourselves which laws we like and which we do not; therefore, we should follow the law; and, if it violates rights, we should work to change it rather than violate it. [Typically, this argument assumes the context of a relatively free country liken the U.S.]

The particular argument in favor of 'constructionists" sounds like a corollary to the "rule of law" argument, saying that judges should enforce the law and leave it up to the legislature to make it better. However, I think it is subtly different, because the question here is: how should a judge figure out what the law means. There are some scholars who would argue that the underlying meaning and intent running through the constitution is the protection of individual rights from oppression by democratic government. By that standard of meaning, even if some rights-abrogating law has been on the books for many decades, it can still be declared non-constitutional by a judge.

[aleph_0]

In the sense that you're saying rights are protected by upholding laws that violate rights (and those that do not violate rights).

Yes, it's an unfortunate contradiction inherent in a political system that violates the rights of its citizens, but except in extreme cases of violating rights to property and life, judges should uphold even those laws which violate the rights of its own citizens. When society comes to such an extreme that it is actually better that we do away with the restriction on ex post facto laws, the debate about which judges should be appointed is by far the least of our worries. When the legislature and executive branch come to such a despotic point that they wholesale appropriate our property and request the death penalty for non-crimes--the point at which judicial activism is appropriate--citizens should probably be looking more carefully for a new country to live in, than looking at judges.

[DavidOdden]

So the in Lawrence the Courts violated the "right" of the Texas people to outlaw gay sex?

That's the essence of the states-rights position which is a centerpiece of conservatism. If the individual states actualy only had laws that protected rights rather than violating them, that wouldn't be such a bad position. If pigs had wings, it wouldn't be such a bad position to say that they can fly.

(Mod's note: Response about "states' rights" was split to another thread. -sN)

Edited April 17, 2007 by softwareNerd
Added notation about split-thread

[Korthor]

I don't think we should fall into the trap of thinking our alternative is between strict constructionism and judicial anarchy (Hear ye, hear ye, hear ye... Welcome to Thunderdome!). After all, liberal judges do give legal reasoning, and there are certainly schools of "normative" jurisprudence that would back up judicial enforcement of rights.

More importantly, judicial review is one of the cornerstones of the American rule of law, so let's not pretend that decisions like Lawrence or Roe are coming out of nowhere. Ever since Marbury, the Courts have been reviewing the legislature and it hasn't collapsed American democracy or the law. Lest we forget, the Constitution is the highest law in the land. Thus, if a statute violates the Constitution then it is a priori invalid given that the authority of the statute comes from the Constitution. Arguable, Aleph O's notion of deference is contrary to the rule of law; at any rate, it certainly doesn't help it.

Additionally, America will probably continue to wobble between freedom and collectivism for the indefinite future. Thus, applying the bad law vigorously in the hope that it will lead to some kind of "awakening" is a questionable proposition. After all, I want to have gay sex with euthanized fetuses now!

Finally, we live in a republic--not a democracy. I like the fact that old guys in robes can over-rule old guys in suits--checks and balances are beautiful thing.

Edited March 27, 2007 by Korthor

[Qwertz]

Stare decisis only implies that you follow the reasoning provided by previous judges except in case of [egregious] error.

That's not stare decisis. Stare decisis, et non quieta movere. Let stand the decision and move not what is quiet. Stare decisis is the legal principle of binding precedent. If the legal issue has been decided before by the same court, that earlier statement of the law must be followed absolutely. That's stare decisis. Stare decisis is not why lower courts have to follow higher ones*, and stare decisis does not say "except where there is egregious error." Stare decisis is only a relevant factor in the highest court in a particular system (State Supreme Courts on matters of State law, the US Supreme Court on matters of Federal law), and, as it is not itself a constitutional requirement, those courts may apply it or deviate from it capriciously. There is no objective standard for when to apply stare decisis and when not to apply it. Functionally, it ends up being used when a court is faced with a prior decision that cannot easily be justified, and the court just doesn't want to go through the effort. Then they appeal to stare decisis. The only practical operation of stare decisis is to maintain the status quo, regardless of the propriety of the current position.

-Q

*Lower Federal and State courts follow higher Federal courts by virtue of the Supremacy Clauses. Lower State courts follow higher State courts by virtue of analogous provisions of State constitutions. All Federal courts follow any State court on matters of State law by virtue of the Full Faith and Credit Act (not Clause) or the Erie doctrine, which arises from the subject matter jurisdiction Clauses and statutes.

[softwareNerd]

Yes, it's an unfortunate contradiction inherent in a political system that violates the rights of its citizens, ...

I understand the rule-of-law argument. While I don't agree with the rule-of-law argument in many circumstances, I don;t think that's the real issue. As I posted above, I think this is a different issue (at least in the case of the U.S.). A rights-based philosophy of constitutional interpretation is consistent with the rule of law position, as long as the judge taking that position agrees to deny only those rights that are specifically denied by the constitution. At least to a non-expert like myself, the book "To Secure these Rights" makes an excellent case that the constitution was written to secure individual rights. Edited March 29, 2007 by softwareNerd

[aleph_0]

All the same, I believe constructionism is rational and that Giuliani is a constructionist in this sense.

[Spaghettim0nst3r]

All the same, I believe constructionism is rational and that Giuliani is a constructionist in this sense.

Juliani is a tongue and cheek constitutionalist. Abortion/gay marriage are distraction issues that the president in reality has very little influence on. He's dishonest even by the standards of a politician. I think the only reason he's even using the terminology "constitutionalist" is because Ron Paul is gaining popularity because of his positions against the FED, income tax, social security, welfare, the CIA, and most other unnecessary government interventions into the economy, including the dept of Education and government education in general. Juliani doesn't give a shit about any of that.

He's a terrible leader, and the firefighters of his home town are trying to tell the country why.

http://www.youtube.com/watch?v=qu5NbBzNa4Y

http://www.youtube.com/watch?v=kCuNRqFNOBY

He's seems to campaign on terrorism... what ideas does he ACTUALLY hold to?

How about a "vote for me or get bombed" threat?

http://www.youtube.com/watch?v=6mEEjX6j_f4

+ He's a moron as far as understanding foreign policy goes. Ron Paul destroys him.

http://www.youtube.com/watch?v=xKITUOl0NBc

Yes Juliani, blow back exists, read a book...

I can't believe anyone seriously considers him likable.

[Atlas51184]

Not a Giuliani fan but... your post would sound like less of a rant if you spelled the man's name right. That would be G-i-u-l-i-a-n-i.

[Spaghettim0nst3r]

Not a Giuliani fan but... your post would sound like less of a rant if you spelled the man's name right. That would be G-i-u-l-i-a-n-i.

A lot of spelling bee winners on this board apparently.

You should all spend less time attempting to insult one another and more time actually discussing the topic. Focus?

(Like I give a fuck how many times I spell Giuliani name wrong)

[Mammon]

(Like I give a fuck how many times I spell Giuliani name wrong)

I give a fuck because it makes me wonder about your intellectual capacity. If you can't use Google or Word to verify something before you post, where is your credibility?

dd u dink bout dat?!/1//1/1111

[DavidOdden]

(Like I give a fuck how many times I spell Giuliani name wrong)

Watch your language, and watch your spelling. Gratuitous vulgar language will be dealt with, and spelling counts (you read the rules, I assume). And as Mammon accurately pointed out, your conclusions have no credibility whatsoever because they clearly aren't based on having any factual knowledge about the man (who you are so unfamiliar with that you don't even know his name). Pity, since I agree that he's a mock-constructionist.

[Atlas51184]

Related to this topic, see Tara Smith's recent paper in The Duke Journal of Constitutional Law and Public Policy, available online here.

[softwareNerd]

Related to this topic, see Tara Smith's recent paper in The Duke Journal of Constitutional Law and Public Policy, available online here.

I just read that article. Thanks for the link. I highly recommend it to the lawyers and law-students here. Very thougthfully argued. Also, great to see an Objectivist article in the Duke journal.

I thought this line was an apt summary: "While Scalia is a positivist, the Constitution's framers were not."

[dbc]

Related to this topic, see Tara Smith's recent paper in The Duke Journal of Constitutional Law and Public Policy, available online here.

I just read that article. Thanks for the link. I highly recommend it to the lawyers and law-students here. Very thougthfully argued. Also, great to see an Objectivist article in the Duke journal.

As a lawyer who really wants to read the article, I am getting frustrated that my link is not working. Any suggestions?

Dan