My thoughts on the most recent judicial atrocities, over at PJMedia.
[Update later afternoon]
Some thoughts from Randy Barnett on “judicial restraint” and Republican judicial appointments.
I know it sounds crazy, but I want judges to follow the Constitution, not the tyrannical majority. I also want them to overturn crap decisions. Stare decisis my ass.
[Update a little while later]
Should we make Justices accountable to the voters?
It seems like a bad idea to me. I agree with Cruz’s diagnosis of the problem, but not his remedy. I think that one of the reasons that impeachment is so toothless is the original wording: “High Crimes and Misdemeanors.” The Founders had a very clear view of what that meant, but most people today do not, as we discovered during the Clinton impeachment trial. The only successful impeachments and removals I can think of occurred in the context of gross and blatant corruption (Alcee Hastings, who was later re-elected), or actual criminality. The other part of the problem is that, while they were adamantly opposed to political parties and made no Constitutional provision for them whatsoever, they perhaps didn’t anticipate how difficult they would make impeachment (even though court appointments are in theory non-partisan).
I think a better solution might be to amend the Constitution to simply modernize the grounds for impeachment. For instance, “…or, in violation of their oath of office, persistent indifference to the Constitution and the rule of law.”
Who could argue with that? It would be quite entertaining to watch Democrats attempt to argue that office holders shouldn’t have to uphold their oath of office. And if it passed, it would force impeachment trials to actual discuss those arcane concepts.
[Update a few minutes later]
This is sort of similar to proposals to rein in the government by adding the words “and this time we really mean it” to the 9th and 10th amendments against encroachments by the flawed interpretations of the Commerce Clause. It would be a “this time we really mean it” to simply following the Constitution and the rule of law.
To the frustration of those who believe in Franklin Roosevelt’s proclamation of Civilization being on a forever forward course towards Progress, the Founder did not want to make it easy to enact reforms or pass legislation, even if majorities supported these things. The sense I get is that they wanted majorities to engage in give-and-take and compromise with those holding minorty positions.
The ACA was written so that each State would have to set up an exchange if they wanted their residents to qualify for the individual-market subsidies. There is ample precedent for this and for Congress having this intention, witness that the age-21 drinking age is not a Federal law but a Federal recommendation, supported by “nice highway system you got there — shame if you lost your Federal contribution.”
The President and Congress were aligned by political party, a party that enjoyed a supermajority in the Senate, owing to some defections, to pass the ACA without compromising with the opposition party. Some will say, “what was there to compromise, the opposition party was and is intrangisent on this reasonable measure to provide health care to people who otherwise would not qualify for insurance or afford the care they need?” But the facts-on-the-ground are that the majority party decided to go it alone, which contributed to the dynamic of members of the minority party either switching parties, unifying in a stiff opposition, or succumbing to challenge in primary elections.
Even within the majority party there was politikin’ to get this thing through that included the Cornhusker Exception and the Louisiana Purchase and other measures to get majority party members on the fence — because of the political facts in their states or districts — to back this.
Meanwhile, the Peasants in the Provinces were grumbling. The 2010 Midterm election was a stinging rebuke of the majority party, electing a Moderate Republican who campaigned on opposing this thing and replaced the Liberal Health-Care Champion senator who had died and “opened the Senate seat.” The majority party lost their Senate supermajority they once had. Also, many Republican governors and Legislatures were “pushing back” against this reform, passive-aggressively not establishing Exchanges. The public sentiment, and yes the public can be swayed by FUD from either the Liberal or Conservative side, was such that these Republican Governors were not going to be punished at the ballot box for not providing the bi-partisan cover of establishing exchanges.
There was an Oscar Sierra moment about the “neat little idea” of requiring individual states to set up exchanges — there was such mass not-setting-up-state exchanges that the worry was that this whole thing would collapse under its own weight. But without the Senate supermajority, which died, in part, because of public sentiment against the law, the majority party enacted this without changing any of the language.
Sure, the intent of the people voting for it changed to not wanting to disqualify people getting insurance on a Federal exchange from getting the subsidy. But they could not change the plain black-and white language of the Bill at this point.
What the Founders intended was that the Supreme Court would rule, “Sorry, guys, if y’all want folks to get subsidies, you will have to hammer out some kind of compromise between yourselves and update the law. But every other forbidden word apart from the “C” word is in the Presidents public lexicon, and yes, if the Republican in Congress were to compromise, their “base” would put their heads on fenceposts “because racism” or something, and there are all these people to be left stranded without health care because their subsidy is being pulled, and the Supreme Court, blinked by just “making stuff up” rather than reading the law.
So Rand, it is not just about an antedilluvian adherance to “process” over “intent” because the process was the intent of the Framers and Founders — to force compromise in a situation like this. Ignoring this form if intent is on the road to Peronism or Chavezism.
Sorry, guys, if y’all want folks to get subsidies, you will have to hammer out some kind of compromise between yourselves and update the law.
The interesting thing is this was the meat of Robert’s argument in the first Obamacare ruling. Hey, if you want to get rid of the penalty, fee, tax, whatever it may be called; do it in Congress. This time, Robert’s decided Congress wasn’t necessary.
Alas, his decision in that argument is entirely consistent with the majorities ruling in the gay marriage case. No words need be present in the 14th Amendment, only an intent. And the intent need not exist at the time of writing, lest we be made to believe the Civil War was fought for the freedom of single sex marriage. The intent merely needs to be whatever the Judges want to claim the intent would mean under modern constructs.
The next election will matter little to this. The historical aspects of that are clear. This type of behavior in leadership continues, as it becomes more powerful and unable to be stopped using the civil means meant to constrain it.
Well if you look at it something similar happened in the de-segregation. The original intent in the US Constitution was not that people couldn’t have slaves because everyone had the same right to pursue happiness or was it? They extended those rights to a minority (blacks). The same thing is happening with the gay marriage thing.
FWIW I’m against gay marriage becoming legal. Gays should not get the same tax advantages etc since they will naturally have low birth rates. The whole point of sheltering marriage is precisely to ensure procreation and the long-term viability of the State.
If they allow gay marriage the pro-procreation benefits need to be gutted out and re-thought under a different law.
FWIW I’m against gay marriage becoming legal. Gays should not get the same tax advantages etc since they will naturally have low birth rates. The whole point of sheltering marriage is precisely to ensure procreation and the long-term viability of the State.
Over-simplification. Do you know gay people who have children? I know plenty. Do you know straight people who are married but don’t have children? I’m one of them. I don’t think the ‘whole’ point of sheltering marriage is to ensure procreation in a social engineering sense. It also allows two people to join households, jointly share assets, and make decisions for each other in the event of serious illness.
It also allows two people to join households, jointly share assets, and make decisions for each other in the event of serious illness.
That can be done without redefining marriage.
I don’t care if they want to cohabitate, and if the government is going to give away things for social engineering, then I would exclude that from same sex couples. I do agree, Godzilla, that the intent of the social engineering is to build families, which despite Dave’s knowledge, there is no natural way for two men to have children. If that is indeed the intent, then maybe they shouldn’t get the credit, but that’s up to judges to decide. And really, that’s the issue and always been the issue. My relationship with my wife has never been defined by government or any third party. But how that relationship interacted with others used to have definitions with words that had clear meanings.
The parallels to pre-Caesar Rome are striking.
Yep. All we need now is a Sulla who realizes that there will be no consequences for intentionally ignoring law, custom and the constitution.
the federal War on Drugs, which somehow didn’t seem to require an amendment even though the prohibition of alcohol did
Good point
There should be one primary indicator of legislative intent; the text of the law as written by congress. Even if it’s a typo, such as a law funding the construction of a 300 mile turnpike that actually, as written, calls for the construction of a 300 mile turnip, the court can, and should, kick it back to congress, which of course has the power to fix it.
In this case, it’s especially obscene, because as pointed out above, the reason for the current language is they couldn’t get it through congress with any fixes, so they just left it as is.
On the gay marriage ruling, I’ve long been a supporter of gay marriage, but this ruling is horrifically wrong. Making law is called legislation, and is not within the prevue of the court. If they’d have, for example, expressed different reasoning, such as that the full faith and credit clause required states to honor marriages (including gay ones) from other states as legal, I’d have had no problem. Instead, their convoluted reasoning is defacto legislation, which is appalling, as well as a very dangerous power grab.
The biggest problem here, IMHO, is not these ruling themselves, but the fact that the Supreme Court often cites prior cases, from even a hundred or more years ago, and their reasoning, when deciding issues. So, the convoluted nonsense in these rulings will have an effect far beyond the rulings themselves.
If the Justices can correct what they believe to be typos then, if they think a program happens to be underfunded, they can correct a ten million dollar appropriation to a ten billion dollar appropriation.
Perhaps we need to end lifetime appointments to the supreme court. One possible idea is to let each president get two nominations to replace the two longest serving justices. This would force change on the court and would increase the importance of presidential elections.
That ship sailed a long time ago.. the only people who still think the US is a republic with separation of powers and rule of law are school teachers and wishful thinkers.
It’s difficult to disagree with your conclusion, Trent, though even as someone who works inside the Beltway, I haven’t given up hope. You are correct, however, that we no longer have separation of powers. The individual American no longer has any institutional defense against his government, and that is a dangerously bad situation. The machinery to fix it still exists, however, and I hold out hope that it will be used. The alternatives are descent into tyranny, or armed insurrection. Neither is something I want for this country, or my children.
Rand says “I know it sounds crazy, but I want judges to follow the Constitution…”
I have a solution. Article VI says “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution […]. ” If the Constitution is amended to remove “and judicial officers”, the problem will go away.
Alternatively, an easier solution might be obtained if you consider that the wording is ambiguous. Judges must swear to “support” the constitution, which is different from “following” it.
You’re welcome!
Yeah, but Bob, don’t you WANT the constitutional republic to go away? I would get that impression based on your posts. If I’m wrong, then how would you limit the powers of the State? And to what?
That can be done without redefining marriage.
Not without a whole lot of extra work for the individuals who want those rights and responsibilities. Why should one group have the convenience of this institution called ‘marriage’, and another group has to jump through a lot of hoops to make that happen? The more logical conclusion of your line of argument would be to eliminate marriage altogether and just let everyone write contracts.
The more logical conclusion of your line of argument would be to eliminate marriage altogether and just let everyone write contracts.
You could have a standard civil union that was recognized by all states, with current marriage law, and leave marriages to the churches (and synagogues, and mosques).
It is a bit of a linguistics problem. When the social scientists were categorizing human relationships they used the English word marriage as a substitute rather than create a new word for this category of human relationships. The only reason this word was used is the same as why same sex marriage was not considered marriage, western culture, otherwise a different term would have been selected.
In this broader sense, there are many meanings to the word marriage but only a couple of them are recognized as marriage by our culture. And that is the problem, that there are two different definitions, two different roles, and two different contexts when it comes to the term, marriage; it occupies two different places in the hierarchy as both the name of the category and the name of a subcategory.
The way social scientists worked around this was by changing and inventing other terms and so we get homogamy and heterogamy. Marriage is the category name.
If marriage was replaced in the hierarchy with Civil Union or some other term, then you could have marriage, homogamy, and polygamy. Marriage would be out of line with the naming convention as it predates it as does our cultural understanding of what marriage is.
To head off some criticism, we categorize everything. It isn’t discriminating against your left hand by having a right hand. Having a different name for similar but different relationships is pretty norman and the terms already exist.
Impeachment has only been initiated 62 times in 218 years. Only 19 have been successful. https://en.wikipedia.org/wiki/Impeachment_in_the_United_States Cruz’s proposal as I read it, (Judicial retention elections after 16 years, then every 8 years thereafter) should increase the likelihood of a removal. Presumably the Supreme Court reëlection rate would be on par with the Presidential reëlection rate of 75%. That would mean 28 years before getting booted on average. It’s a little different for the Supreme Court as 16 years is more likely to flip which party is in ascendance than 4 so 24 years might be a more likely average.
Cruz’s proposal would also prevent ossification as life expectancies rise.
In all, it’s not perfect, but much better than beefing up impeachment.
How ironic is this?
Impeachments and trials to remove and permanently bar any federal office holder or employee should be moved out of Congress. Impeachments should be initiated by a new assembly of the Attorneys General of the States and trials presided over and judged by a new Court composed of the chief justices of the supreme courts of the States.
You could have a standard civil union that was recognized by all states, with current marriage law, and leave marriages to the churches (and synagogues, and mosques).
I think that’s what we have right now. Whatever churches, synagogues, and mosques do is window dressing — the contractual part of marriage, with rights and obligations, enforceable by law (subject to divorce court, etc), is only meaningful when recognized by the civil state and civil laws. Let the religious institutions do whatever they want in terms of ceremonies, who cares — but allow everyone access to the institution of marriage.