Posted on 03/16/2003 2:42:45 PM PST by Remedy
Reply To Judge Richard A. Posner On The Inseparability Of Law And Morality
[79] Constitutional scholar, John Eidsmoe, outlined several precepts of the philosophy of relativism as applied to law:
(1) There are no objective, God-given standard of law, or if there are, they are irrelevant to the modern legal system.
(2) Since God is not the author of law, the author of law must be man; it is law simply because the highest human authority, the state, has said it is law and is able to back it up.
(3) Since man and society evolve, law must evolve as well.
(4) Judges, through their decisions, guide the evolution of law.
(5) To study law, get at the original sources of law- the decisions of judges; hence most law schools today use the "case law" method of teaching law. 117
…Justice Holmes, writing for the majority in, Trop v. Dulles, held that, "[ the Constitution] must draw it's meaning from the evolving standard of decency that mark the progress of a maturing society." 120 Likewise, Cardozo, a no less equally revered jurist as Holmes, stated in his book, The Nature of the Judicial Process, that, "I take judge-made law as one of the existing realities of life." 121 Dornan and Vedlik, in a similar vein said, [the Court has] "liberated itself from what the Declaration of Independence called "the Laws of Nature and of Nature's God." 122 Finally, it was Chief Justice Charles Evan Hughes who boldly exclaimed that-" The Constitution is what the judges say it is." 123
…The judge, in deciding a case, looks to the end he wishes to achieve or his "gut feeling" and crafts the necessary means via application of a "Rule of law" to rationalize such a conclusion. 124 Another precept of realism follows a reasoning-as-rationalization approach to the law is rule-skepticism which holds that "the law . . . consists of decisions, not of rules." 125 Thus, realists have concluded that since judges' decisions are the law, the Common Law doctrine of stare decisis (i. e., precedent) is no longer relevant in modern judicial decisionmaking. 126 To the realist, the law was too much in a state of flux and indeterminacy for stare decisis to apply. Also, realists questioned the rationale of binding a judges opinion in one case to a decision in another case decided many years before, because the judge in the latter case could always find some "distinguishing" fact from the earlier to justify having a different result since no two cases are exactly alike.
The Inseparability Of Law And Morality, The Constitution, Natural Law And The Rule Of Law
Judicial Monopoly Over the Constitution:Jefferson's View The President can refuse to enforce court orders he believes in conflict with the Constitution. (The courts have no enforcement machinery, i. e., prosecuting attorneys, police, armies, prisons, or electric chairs, of their own.) As Andrew Jackson is alleged to have said, "John Marshall has made his decision; now let him enforce it."
Congress, the Court, and the Constitution(first excerpt) why must the Court rather than the Congress be the states' defender?
Congress, the Court, and the Constitution (2nd & 3rd excerpt) If one has trouble imagining judicial review so confined in its scope, it is probably because the modern American mind, conditioned by at least a half-century of judicial supremacy, can hardly help but regard the judicial branch as a co-equal partner in the public policy making process. But it was doubtless to prevent such participation by judges in policy-making that the Founders circumscribed the jurisdiction and power of courts so narrowly in the first place.
How Not To Overturn Roe v. Wade The unstated premise of those who have adopted this strategy is that the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken.
Constitutional Persons:An Exchange on Abortion ...Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, Roe is impervious to logical or historical argument; it is what some people, including a majority of the Justices, want, and that is that.
Lincoln on Judicial Despotism I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
STENBERG v. CARHART :Justice Scalia, dissenting. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.
Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime & pure, [and] which denounces against the wicked eternal misery, and [which] insured to the good eternal happiness, are undermining the solid foundation of morals, the best security for the duration of free governments. (Source: Bernard C. Steiner, The Life and Correspondence of James McHenry (Cleveland: The Burrows Brothers, 1907), p. 475. In a letter from Charles Carroll to James McHenry of November 4, 1800.)
[O]nly a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters. Source: Benjamin Franklin, The Writings of Benjamin Franklin, Jared Sparks, editor (Boston: Tappan, Whittemore and Mason, 1840), Vol. X, p. 297, April 17, 1787.
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of man and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice?
And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true, that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who, that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric? (Source: George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination (Baltimore: George and Henry S. Keatinge), pp. 22-23. In his Farewell Address to the United States in 1796.)
They most certainly did have a consensus, as was indicated by virtually all major statements that touched the subject while the Constitution was being written and debated for adoption. It was only after the Constitution went into effect that some people imagined that the courts shouldn't override Congress, but it never approached the accepted view. Even before Marbury vs. Madison, a circuit court refused to take an action required by a certain part of the Judiciary Act, on the grounds that it imposed extraconstitutional duties upon the court (I don't have a citation immediately at my fingertips). Congress obligingly amended the offending provision, without controversy.
>>
as was indicated by virtually all major statements that touched the subject while the Constitution was being written and debated for adoption.<<From Hamilton, who was a loose constructionist: The Federalist No. 78
ALEXANDER HAMILTON
May 28, 1788
…all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR… The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them….The judiciary…. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
…from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches;
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
The Founders intended for the political branches of government to be subject to the law - i.e., the Constitution - and as well intended for the judiciary to declare the meaning of that law. If the political branches contemn the courts on such matters, they are in effect announcing that they are behaving outside the law, and that they recognize no restraints upon their discretion. This defeats the whole purpose of having a written Constitution.
Until the Warren Court started determining cases based on "is it fair".
That put them into "policy".
They have been screwed up ever since.
>>>
But it is their job to determine, in the cases that arise before them, whether the policies they're being asked to uphold are in fact consistent with the Constitution.<<<It's a view consistent with the Preamble to the same, which stated that it was passed "to prevent misconstruction or abuse of its [the Constitution's] powers", which would mean federal powers, since the states don't get their powers from the U.S. Constitution. It's also consistent with the reason why the BOR was passed: namely, because the people were afraid that this new federal experiment would be too large and too distant to be controlled by them. They weren't looking for protection from their own state governments. You'll notice that the Articles of Confederation didn't contain a bill of rights. It was only after the Constitution was passed that the people demanded one.
I can agree in principle that there are ways of dealing with unconstitutional rulings. I would still urge extreme caution, however, against all talk of impeachment of judges on the basis of their rulings.
There are really two categories of judicial review that are quite different from each other, at least in practice, but unfortunately they're often treated as one. The first is review of state policy. It is in this arena that modern judges are most deserving of the accusation of judicial activism. Certainly Roe vs. Wade and a host of other infamous rulings fall in that category. The federal courts never seem to tire of pushing states around at their whim.
The second category is review of federal policy. Here, the problem is exactly the opposite. Congress for decades has invaded the prerogative of the states, and abused individual rights (campaign finance, gun control, etc.), and the courts have let them get away with it time and again. Any talk of impeachment is clearly going to make that problem even worse.
Since the bulk of judicial activism concerns review of state laws, the best way for Congress to handle it, if they should be so inclined, is simply to cut off the courts' appellate jurisdiction over state laws, or at least certain categories of state laws. Let's not rock the boat more than we have to.
Odd 'fact'. -- Supposedly Marshall had a -- 'states rights trumped the BOR's' -- view in 1803, because barron wasn't controversial 30 years later?
This would indicate that the vast majority of Marshall's compatriots, both in and out of the legal profession, shared his view as to the scope of the Bill of Rights.
They were trying to prevent a civil war by so holding. Compromising principle never works.
It's a view consistent with the Preamble to the same, which stated that it was passed "to prevent misconstruction or abuse of its [the Constitution's] powers", which would mean federal powers, since the states don't get their powers from the U.S. Constitution.
But all states pledged to honor our Constituton as the supreme law of the land. The BOR's Preamble did not alter this basic principle.
It's also consistent with the reason why the BOR was passed: namely, because the people were afraid that this new federal experiment would be too large and too distant to be controlled by them. They weren't looking for protection from their own state governments. You'll notice that the Articles of Confederation didn't contain a bill of rights. It was only after the Constitution was passed that the people demanded one.
The BOR's was intended to outline individual liberties that were NOT to be infringed by governments in the USofA at any level. -- You are exactly right that the people demanded one.
Odd 'fact'. -- Supposedly Marshall had a -- 'states rights trumped the BOR's' -- view in 1803, because barron wasn't controversial 30 years later?
This would indicate that the vast majority of Marshall's compatriots, both in and out of the legal profession, shared his view as to the scope of the Bill of Rights.
They were trying to prevent a civil war by so holding. Compromising principle never works.
It's a view consistent with the Preamble to the same, which stated that it was passed "to prevent misconstruction or abuse of its [the Constitution's] powers", which would mean federal powers, since the states don't get their powers from the U.S. Constitution.
But all states pledged to honor our Constituton as the supreme law of the land. The BOR's Preamble did not alter this basic principle.
It's also consistent with the reason why the BOR was passed: namely, because the people were afraid that this new federal experiment would be too large and too distant to be controlled by them. They weren't looking for protection from their own state governments. You'll notice that the Articles of Confederation didn't contain a bill of rights. It was only after the Constitution was passed that the people demanded one.
The BOR's was intended to outline individual liberties that were NOT to be infringed by governments in the USofA at any level. -- You are exactly right that the people demanded one.
[something is over-riding my 'italics' commands]
Well, you're right. Taken in isolation, that fact wouldn't prove much about what his views were in 1803. That's why I put it in some historical context. Suffice it to say, even though it's true that the states weren't allowed to do anything that would conflict with the Constitution, it was the view from the time the BOR was passed, that the BOR didn't prohibit the states from doing anything; therefore no law that the states passed would have conflicted with it.
In order to have a conflict you need a prohibition. And it was the understanding at the time, that the way the BOR was worded, it did not constitute a prohibition on state action. The general view was that the Constitution had to specifically indicate that it was prohibiting states from doing something; otherwise it was considered a prohibition on federal action only. That's just how they read it.
The BOR's was intended to outline individual liberties that were NOT to be infringed by governments in the USofA at any level.
You could actually take that argument further and say that it outlined liberties people are entitled to all throughout the world ("all men are...endowed by their Creator with certain unalienable rights"). Nevertheless, the federal government was invested only with the power of upholding rights within a certain sphere. No one at the time of the founding thought to give it unlimited power of upholding rights. The people knew that power, even when granted for just purposes, was ultimately dangerous to their rights. They wanted that power to be balanced between state and federal governments, with the bulk of it going to the former.
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