Monday, March 28, 2005

Blogger sucks and my lost post on "legislative activism":

Blogger frustrates me by losing a post I put a lot of thought into. Instead I refer you back to this post, on which I based the new, lost post:


Commonly held wisdom suggests that after Marbury v. Madison, the courts have the sole power over the constitutionality of laws. This is wrong. Rather (and appropriately in my opinion) the courts are the final stop (well, the Supreme Court in particular is “where the buck stops”) regarding the question of constitutionality, but the other two branches of government—if they do their jobs appropriately (and alas, more often then not, they do not)—have an equal say over questions of constitutionality. They just get their say earlier on in the game.

So how do Congress get to decide the constitutionality of federal laws? Very simple, they are supposed to know their constitutional limits, and they aren’t supposed to pass unconstitutional laws.

What about the executive? The President is supposed to veto unconstitutional laws. George Bush was not being a “good President” when he signed Campaign Finance Reform into law, doubting its constitutionality, and noting that it was up to the Supreme Court to decide that question. No, if the President believes a law to be unconstitutional, then the President has an obligation to veto that law (just as Congress has an obligation not to pass laws that are unconstitutional).

And the courts have far less power over what laws come into being than the other two branches of government. Congress and the President can prevent laws that are perfectly constitutional, yet unwise in their respective opinions, from coming into existence. The courts are allowed to strike down unconstitutional laws only (and have to justify their decision with a written opinion). Yet, unwise but constitutional laws must be allowed to pass.

Now I know many “conservatives” who decry “activist judges” would argue that courts often strike down laws that may be unwise (or not) but perfectly constitutional. Well, what about the much greater problem—a scandal if you will—of courts not striking down laws that they ought to? What about all of the unconstitutional laws that are passed by legislatures and signed into law by executives, that courts let go? Much of the federal law passed in the last 50 years and currently on the books is clearly unconstitutional.


Now let me add that this scandal -- the scandal of Wickard v. Filburn and its subsequent line of cases -- is only 1/3 the fault of the Supreme Court. Before that unconstitutional law made its way to the Supreme Court, it was unconstitutionally passed by Congress and unconstitutionally signed into law by the President (whenever Congress passes and the President signs an unconstitutional bill into law, I consider these actions unconstitutional; am I wrong?). In other words, Wickard wasn't just a product of judicial activism, but also of "legislative" and "executive" activism as well. If Social Security is not within the constitutional powers of Congress as Madison et al. envisioned them, then that and everything else the Congress does that doesn't comport with "original intent" is flat out legislative activism, (and executive activism as well, unless the bill became law by overriding an executive veto).

Question: How is "legislative activism" and "executive activism" any more legitimate than "judicial activism"?

Update: See Chapter 6 -- particularly from p. 143+ -- from Randy Barnett's Restoring the Lost Constitution, which deals with this issue and makes similar points.

42 comments:

Marty said...

Wow, i don't even know Wickard v. Filburn, (and since you didn't sum it up for us, i'll assume it was lost to blogger) but am intrigued anyway.

Key: Congress and the President can prevent laws that are perfectly constitutional, yet unwise in their respective opinions, from coming into existence. The courts are allowed to strike down unconstitutional laws only.

Quite unlike Goodridge, which didn't strike any particular law, but ordered the legislature to redraft a timeless law into something more fitting of their taste. This is the top down approach.

Question: How is "legislative activism" and "executive activism" any more legitimate than "judicial activism"?

The bottom-up approach recognizes that the authority of government begins with the consent of "We the People". Legislative activism is the direct result of grassroots and commercial activism, and the Executive branch is acutely sensitive to those same trends, pushing its own agenda through the same legislative process. Has the Judicial branch always been able to press legislation in the same manner as the people, or the executive, with a final vote by elected reprasentatives? Or is this something entirely new -- a judicial ultimatum, or a preemptive veto?

I'm not comfortable at all, with the top down approach. Questions like abortion and same-sex marriage are out of constitutional scope until "we the people" decide to put them there. Judicial activists are in a unique position because their Word is Law, without any legislative review, or executive veto, or consent of the governed. I don't think that's how it was supposed to work. Instead, like in your quote, the judiciary has the right to strike law, not rewrite, or demand new law. That is the domain of the people, right?

For example, was there any authority for what was done in Goodridge? Or should that court, having found current marriage laws unconstitutional, simply struck them, leaving it to the legislature to craft something that could be defended in that court? What was it that gave them the muscle to demand not only how the new law should be crafted, but when?

PS: Your work is too good to edit in blogger. Once bitten, twice shy -- compose in something with a Save button, then publish in blogger.

Jonathan said...

Marty,

Go to Jason Kuznick's Positive Liberty site and check out his latest post which discusses the Wickard case. It's essentially the one that said that Congress can do whatever the Hell it wants under the "Interstate Commerce Clause."

Jonathan said...

Here is the link to Jason's post on Wickard:

http://www.positiveliberty.com/2004/11/poverty-of-commerce-clause.html

Marty said...

Ok fine, but what of my questions above, specifically as to the judicial authority expressed in Goodridge? Are they sound, or hopelessly naive?

You're the lawyer around here...

Jonathan said...

Tonight, I'll post a response.

Marty said...

Thanks, i look forward to reading it. But as you might expect, i am less interested in your opinion of the "correctness" of that ruling (we both already know each others opinions on that matter), and more interested in a dispassionate analysis of the judicial authority expressed in it. Unfortunately i dont know many law professors, gay or otherwise, so you get the question.

I see that Judge Kramer has temporarily stayed his decision on the constitutionality of the California marriage law, at least until he hears from both sides yet again. Unlike the state of Massachusetts however, the people of California clearly expressed their will that marriage is between one man and one woman in Prop 22. To rule otherwise Judge Kramer must presume that the question itself, put to the voters in Prop 22, was out of bounds and should never even have been offered to "the people" to decide...

I'm willing to bet that the question itself was analyzed by the state courts, and found to be well within the proper domain of California's referendum system. So how could Kramer come along, after the fact, and rule otherwise? That not only do the people not have the right to make this dinstinction, but that the state constitution settled that question long ago, when the people ratified an amendment whose ramifications were not fully apparent at the time. Would that amendment have passed, had the people fully known what rights they were enshrining?

The people of California have spoken explicity on this question. It must take some serious cajones for one man to stand against them and say "you do not have the authority to answer that question -- I do."

What's up with that shit? I'm obviously no lawyer, but there seems to be some very unamerican shenannigans going on here, in the name of homosexual civil rights.

Jonathan said...

Marty,

I wrote the post, but I am having problems publishing it.

It'll come through...eventually.

Tim said...

I kept losing posts, too, until I started typing them in TextEdit and MS Word. The Blogger editor seems to work better when you cut and paste already-existing text.

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