Posted on 04/11/2005 8:10:12 PM PDT by z9z99
Reform of the judiciary (the need if which is increasingly evident) should begin with resolution of contradictory principles of constitutional law. The concept of a "living constitution" is inherently at odds with the concept of stare decisis. ("the thing is decided"). It violates common sense that the provisions of the constituion evolve but interpretation of them does not. Why should the founder's original intent be any more subject to revision than the latest 5-4 opinion as to what that intent was? Law should come with 20 year limits. A case should have no precedential value after 20 years. (So more level-headed lower courts can ditch ridiculous interpretations of the commerce clause, among other things). Well-reasoned decision will stand the test of time, but overt political decisions will get washed out eventually. Supreme Court opinions and dissents should all be anonymous, so weak minds like Blackmun won't be swayed by adolescent fan-mail. Judges should not be tempted to leave "legacies." Finally, terms of judges should be renewed every twenty years, so morons who fashion themselves as champions against the dyong of the light can be shuffled off to pature with a minimum of fuss.
I agree with most everything except the term. I think it should be 12 years. That is more than adequate to make a fool of yourself.
On this part of your post I can "almost" agree, but not quite.
Why should any judge's term be "renewed" by politicians? Keep the politicians out of it by an amendment to limit the terms of judicial appointments to a set number of years - say 12?
12 years would give a judge the "judicial independence" all judges say they need, while limiting the damages of any single judge to the 12 years of his term.
Term limits are automatic. They don't involve politicians with dubious agendas, and they mitigate the need for impeachment of activist judges (which Congress doesn't do anyway).
Term limits also act as an additional check on the judiciary. The present checks rely on Congress to do their job as authorized by the Constitution, and as we all know that doesn't happen.
What about a Constitutional Amendment providing Congressional review of federal adjudications (i.e. Marbury v. Madison (1803) reversed)? Application for Certiorari made to a joint committee only with a fifth plus one state governors signing as cosponsors.
I think some of your suggestions derive from a misunderstanding of the principles at work; or at least as the founders intended them to work.
There is no constitutional mandate, provision or basis for what is spoken of as a "living constitution". This is legal and judicial doublespeak for the political laziness of wanting to get around the only constitutional provisions for amending the constitution - the formal amendment process. The question is not whether or not the people's consensus of what the constitution says and what it means should evolve. The question is how should that evolution be moved from concept, to consensus to law. The only constitutional mandate for reflecting that evolution is the amendment process. It is how we brought in women's suffrage, lowering the voting age and many other "rights" and changes in the last century. Liberals abandoned the process and started using judicial fiat when they could not obtain democratic majorities to provide the democratic basis for constitutional change.
A constitution is not "law", it is the legal foundation for law. It is not intended to be minute, detailed policy and thus a provision of the constitution should not automatically be dispensed with by some arbitrary date, or you undermine all law that has used that provision for its foundation; you leave those laws hanging with no mandate for them in the constitution.
Courts, after any number of years (less and more) do revoke earlier precedents. Such actions should still be held to the clear intent of the constitution, but there is no good reason that they should be more revokable or less, by any number of years.
The idea of life-time appointment of judges went along with, and not contrary to judges ruling on the basis of original intent of the constitution. It is part of the concept of the intent of their independence; the reason for their independence; to hold congress and the executive to the original intent of the constitution, unless and until the democratic processes of the people changes the constitution. Original intent and judicial indpendence were expected to protect and uphold the constitution - not re-write it. The insulation from political influence, and particularly to immediate political influnce was to preserve and protect the intent of the constitution in spite of political opposition at the moment - political opposition that wants the constitution looked at differently but has not produced the national consensus to amend the constitution. It was intended to protect the provisions of the constitution from congress passing a law that violates the constitution, or from the executive ignoring a law passed by congress.
Having abandoned orginal intent, the current Supreme Court simply writes a new constitution, by judicial fiat one ruling at a time. It is not a "living constitution", it is a dead constitution that is replaced with the personal opinions of five out of nine judges.
Thanks for the reasoned and articulate response. Your points are well-taken but, in my opinion, wrong. Your concession that my comments were prompted by considerations of "principles...of how the founders intended them to work" renders much of what followed moot. If the judiciary worked the way the founders intended it to we wouldn't be havng this discussion. My proposals are intended to have consequnces similar to that intended by the founders. Your points are well-stated but have no more practical effect than paying some street crazy to stand in front of the Supreme Court building and shout "Observe original intent!"
As to specific points:
I do not believe in a "living constitution." Perhaps I stated my position badly. My point is that the concept of stare decisis is inconsistent with the concept of a "living constitution." Let's have one or the other. What we have now doesn't make sense.
I did not advocate "dispensing with" any constitutional provisions at an arbitrary date. I proposed limiting the precedential value of Supreme Court decisions to a term certain. This will have one very practical result: Right now, the Supreme Court is rather lethargic about granting certiorari in matters that may have been half-assed decided. If we limit stare decisis, lower courts will gradually reject unsound precedent (and follow well-grounded rulings) so the Supreme Court will repeatedly be re-presented with weak rulings and have a chance to address them.
The life appointment of judges was an iffy proposition from the outset. It likely was the brain-child of the brilliant but self-destructive Hamilton, who wanted the executive to also serve a life term. Franklin wisely observed that the mind sometimes putters out before the body. I am dubious of the notion that executives appoint judges with the expectation that they will "grow" into their office. Life tenure in the extreme is more likely to produce decisions flavored with senility than wisdom.
The Supreme Court bought into that Blackstonian twaddle that courts merely declare what the law is, much like Michelagelo thought that his job was to free a sculpture of the excess stone. Some legal scholars interpreted Blackstone to mean that the only valid Supreme Court decisions were unanimous. Maybe we should only let the Court screw with legislation if the opinions are unanimous.
You go through a lot of convoluted "methods" and "practices" as a sloppy means to fix the essential problem, which, you half-heartedly admit is that judges, and particularly Surpeme Court judges in matters relating to the meaning of the constitution do not uphold the meaning of the constitution, as it is given to them.
We can, and we will provide the means to, make them adhere to the "orginal intent", through legislation and/or constitutional amendment. Which is the type of actions any of your suggestion would require. So why beat around the bush, with a bunch of minor changes that simply let later judges throw out the dictates of earlier judges and replace them with new dictates of their own. It does not solve the essential problem, which is not procedural but conceptual. Set the concept into the law/constitution.
And no, let's not have a "living constitution", if by that you mean judges write a new constitution through their own dictates with each ruling. It is incompatible with the democratic basis of a constitution in a democratic republic.
In my opinion your points are well taken, but tangential to the issue.
We now seem to be sliding into that conversational chasm of talking past one another. Perhaps we should be more precise about our arguments.
I don't think that my proposals are sloppy at all. I think they give due deference to the law of unintended consequences and recognize the reality of the justice system, not only in the United States but everywhere, not just now but always. I don't think you can limit the function (abuses in this case) of the courts without limiting the methods. We need to limit the damage done by mavericks on the Supreme Court (and there will always be mavericks. Remember how John Sunnunu promised Bush 41 that there was no "closet liberal" aspect to Souter?) by limiting the influence bad decisions have on the lower courts. Stare Decisis is an artificial construction. Toss it.
Perhaps we need to define a "living constitution." I think a living constitution is O.K. if it lives through the amendment process and not the interpretation process. "We the People" should have our input into bringing application of founding principles into conformity with modern realities.
You and I do not seem to be connecting on a fundamental point. I see the problem as one that emanates from the Supreme Court but is odious at the level of the inferior courts. You seem to suggest that we can somehow get the Supreme Court justices to shape up. (Can you propose some constitutional language to do so?)
I suspect that your main objection to my thoughts is that they do not go far enough for your tastes; that you'd like to clear the field and have the Supreme Court start afresh with a renewed integrity intended by the founders. I'd like to also; I just don't think it's possible.
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