Asymmetrical Information

We all delude ourselves about the sacred status of things we agree with. Do I really think that the federal government has no commerce clause jurisdiction over medical marijuana, or do I merely agree that it is so because I am in favour of medical marijuana? But this puzzles me because it's so logically inept, and because I often hear it from people who are intellectually very gifted.

Well in my case, I have no particular favor for “medical” marijuana; I just think that if the Reserved Powers Doctrine means anything than the interstate commerce clause ought not to be construed so broadly that anything which could conceivably affect interstate commerce suddenly falls within the purview of the federal government. By the same token while I think domestic violence ought to be prosecuted as a crime at the State level, I don’t favor a federal statute being enacted on the grounds of “interstate commerce.”

That being said, I think that you’re right that many people have their particular causes/issues (political not psychological) and think that because something they value ought to be in the Constitution that it’s okay to twist the interstate commerce clause or the due process clause to read it in there.

Generally I think it is better to leave most of these decisions to the 50 States in which many of them will assuredly “get it wrong” but people have the option to try and change it or (if bad enough) move to a better State than have a one-size fits all standard imposed by the federal judiciary.

Stare decisis?

I mean it's one thing to argue that liberals or people who both support Brown v. Board (which refuted Plessy) and insist on honoring the precedent of Roe are inconsistent across the board, but it's not your main argument here. Your (A)+(B) coexist via stare decisis.

Are they being disinginous about either accepting Brown or rejecting a possible Republican court repealing Roe? Yeah. But so are conservatives who claim to support resrtraint and disdain activism who in the case of abortion rights are seeking to overturn settled law (albeit based on what they view as activism).

Maybe we'd be better off if everybody would just honestly cheerlead for their issues straight up instead of erecting theoretical legal edifices upon them. Good luck with that.

stress is wrong.

"activist" is just shorthand for judges who rule in ways contrary to an originialist view of the constitution. it doesn't mean, as understood by the conservative masses, a proclivity towards changing current law, as its denoted meaning would hold.

overturning roe would be in accordance with this originalist view of the constitution (i speak generally). thus, no hypocricy.

furthermore, there are indepenedent reasons for holding a "theoretical legal edifice," which do not rest merely on the policy outcomes such a legal philosophy would produce. so please, let us not embrace argumentation by policy outcome with concern to the judiciary, since we will then in turn have embraced legal realism, which is how we got here in the first place.

who in the case of abortion rights are seeking to overturn settled law

Is this a case of exactly the point our host is raising? What is this so-called 'settled law'?

"activism" is shorthand for any decision that conservatives don't like.

I've talked to a lot of people on this topic and I don't know anyone who thinks (and can't recall anyone who wrote)that abortion is a constitutional right that GOP judges have no right to overturn.

On the contrary everyone I know and read understands that what is or not constitutional is at the whim of the SC and also know that GOP and conservative judges very much have the right to overturn it.

That's why they oppose them because they don't want them to be able to exercise that right.

Oops. She's back in London and using "favour". Please change my "federalized" to "federalised".

drugs or not ,the commerce clause is being used to make the states knuckle under to the feds for any reason the feds think proper...what states rights??

I think there's another distinction between Brown and Roe that is missed when one speaks on the abstract level of "constitutional right to do X."

Remember that the Constitution does not, strictly speaking, confer "rights" on anyone. It confers powers on the federal government, and it limits the powers of both the federal and state governments to act in ways that would infringe on certain rights that were understood to be pre-existing.

When we say that an individual has a "constitutional right to do X," we usually mean that it would violate the Constitution for a federal or state government to forcibly prohibit him from doing X. (This is the case with the current jurisprudence on abortion, though it's a bit fuzzier as really we are talking about a right to "privacy" which the state can "burden," but not "unduly," the line between the latter two determined by some sort of balancing of the degree of the interference with the state's legitimate interest in protecting a fetus at whatever stage of development is in question.)

But no-one ever had a "constitutional right to discriminate," even under Plessy. It was always within the state's police power to prohibit individuals from discriminating. All Plessy held was that certain forms of "discrimination" by states (i.e., those in which the different races were given "separate but equal" treatment) did not violate the Equal Protection Clause--i.e., did not constitute unconstitutional discrimination.

I'm not certain to what extent this undermines Jane's point, but I think it is worth keeping in mind the distinction between "you have a constitutional right to do X" and "doing X does not violate the Constitution."

Stare decisis is just a legal doctrine, not a moral one. That a law has been around for a while doesn't mean there's anything inherently right or good about continuing to follow it.

Stare decisis means that if the case of A v. B produces rule of law X, the case of C v. D with identical circumstances must follow the same rule of law X only if the parties don't argue X should be changed. Parties can always argue that circumstances have changed and X should no longer be followed, or that the A v. B court was wrong and that we should instead have rule Y. One can always challenge a rule of law; stare decisis just dictates that a court can't change it without a good reason.

Legal theory is a tool that can be used to slow down the machinations of opinion and conflict and give a framework to sort things out. It's kindof like engineering discipline in a way. My primary skill is writing software. I have clients and customers who want all sorts of features and changes and whatever. Most requests truly are stupid (to be frank), and I need to dig into what they want to do rather than what they think it should do in order to see if it already does or realistically could or if they might look at other tools, etc. Some requests are pretty good, but if I just go and make them happen without thinking, they will be difficult to maintain in the future or cut off future plans or even interfere with other existing features. So I rely on a bunch of petty rules, arbitrarily applied, to keep the products manageable and usable. By quoting a "rule" to a user, I can get them to think of whether they'd ever be able to pass that test with their suggestion, which is usually as effective as giving a swolen thumb to a baby to suck on.

A society whose legal system was consistent and followed all the theory perfectly would probably be simultaneously tyrannical and boring. Legal scholars who fought exclusively for such consistency would be so anal you'd have to bolt their own office furntiture down so it doesn't get sucked up. But we ought to consider these things rather than just have instantaneous up or down votes on issues as the come up.

Well, I don't think you need to have an opinion on medical marijuana to conclude that the Wickard decision was wrong (where they ruled that Congress could regulate the production of wheat under the Commerce Clause -- even if it was never bought or sold).

Intellectually gifted people are not less prone to intellectual dishonesty or self-deception than less intellectually gifted people. Once strong emotions enter the arena, people will say any damned thing, regardless of whether their I.Q. is 80 or 180. In fact, people gifted in the use of language are rather more prone to this, due to their facility for manipulation. If ya' ever see a couple of $500/hour divorce attorneys have at it (although the emotion in these instances is supplied by the clients), you'll see the phenomena first hand.

So...conservatives hate the idea of a right to privacy that activist judges found in the Constitution when they combined the intent from several other areas that specified certain ways in which the government was not allowed to infringe on individual's lives. Penumbral reasoning was the phrase used, I believe. Yet they claim that in the Bible when you combine several passages it makes it blindingly obvious that God thinks that life begins when the sperm meets the egg instead of once it's implanted or when it has nerve cells or any other criteria you could come up with and God therefore obviously considers abortion to be murder. Equally penumbral reasoning in the minds of any but the true believers. But of course as evil baby killers and pro-abortionists their opinion doesn't matter because of course the pro-life side is incapable of any error concerning what God wants.

Well, I for one don't frankly care about medical marijuana. Hell, I don't even care that much about recreational marijuana. I do care a very great deal about a government of limited and enumerated powers, which Wickard swept away and I was rather desperately hoping that Raich would help to restore.

Stare decisis be damned, in all applicable cases. If an old decision is inconsistent with the Constitution, it should be overturned, and there is no logical argument by which an appellate court nominee may be defamed on the basis of his or her lack of support for a Constitutionally invalid precedent.

Stare decisis is just a legal doctrine, not a moral one.

Well, the same goes for constitutionalism as a whole. This is not a relevant distinction--I don't think calling people immoral for advancing a certain view of constitutional process advances an argument.

The people who tell you that abortion is a "fundamental constitutional right" (by which they mean, one that can't be taken away without supposedly destroying the validity of the Constitution), is possibly misinformed, but most likely just employing cant that they know is a lie. After all, the same people—representatives of NOW, Planned Parenthood, etc.—are constantly all over the airwaves stating that overturning Roe v. Wade would "make abortion illegal." That's so obviously a lie that anyone with a sixth grade education who utters it must be assumed to be knowingly dishonest.

Equally penumbral reasoning in the minds of any but the true believers.

Very well then, the Hebrew word for a 'young child' in the Old Testament canon is can refer to a baby still in the womb, a newborn, or a toddler. The same root lends meaning to any of these.

Simple enough for ya?

anony-mouse,

So what? It proves nothing. Here is a link to an article on Conservative Jewish thoughts on the subject. They're not as simple as yours.

http://www.uscj.org/SocPolAbortion_Contr5481.html

A few points:

1. A minor quibble: The Warren Court did not decide Roe. Warren retired in 1969, Roe was decided in 1973, when Warren Burger was Chief Justice. A number of the justices were holdovers from the Warren Court, however.

2. The Court is at its least legitimate when its decisions rest on emanations from penumbras and similar such alchemy. When the Court takes a controversial topic and essentially makes up a doctrine to support whatever a majority of justices happen to believe, the Court is less likely to be seen as a neurtal arbitrator of disputes. From an institutional point of view, it is unwise for the Court to do this, as it inevitably politicizes the process and de-legitimizes the Court in the eyes of citizens.

3. It is damaging to the body politic for decisions on controversial social issues to be resolved by the Court. When the Supreme Court decrees that the Constitution commands something, the loser has nowhere else to go. At that point, there can be no compromise, and the political process is short-circuited. If abortion would have been committed to the political process in 1973 in lieu of the decision in Roe, it would be much less of an issue today. Sure, there may still be hard-liners on either side, but their numbers would likely be small and they would be largely marginalized. Through discussion (i.e., the political process), it is possible to reach a rough consensus most people can accept. When the Court usurps an issue from the political process, discussion is at an end and screaming begins. People who think the Court was right no longer have to justify why they hold the opinions they do ("because the Court says so" is all that is necessary), and those who think the Court was wrong know they can't do anything about it except get different judges appointed. In the long-run, this is bad for the Country.

4. Following on from #2 and #3, this entire dispute illustrates why originalism is the best policy. If the Court were to defer to the political process on controversial social issues (as it did for the first 150 or so years of the Republic), the Court would be held in higher esteem, and the political process would not be dominated by people who don't know how to talk to each other.

Ben - good post!

Ben, there are issues which the Court must take out of the political process. E.g., if Congress passed a law making it a federal felony to say "George W. Bush is stupid". (Not that this is something I would say - but if Congress can pass such a law, they can also pass a law restricting my ability to publicly say that "Senators McCain and Feingold are a menace to freedom." Wait a minute ... they already did.)

I agree that the abortion issue wasn't one of these. It's not a clear-cut right protected by the Constitution. I support abortion rights, but it should be decided by the political process in each state. And I very much regret that the Supreme Court somehow found a right to abortion in some mysterious emanation, but can't see the right to free political speech right before their noses.

JimS:

Given which way most of the Jewish block votes, as compared to the tone and direction your original comments were directed, I don't think you even have an argument.

More to the point, your original comment was a snide, demeaning swipe tarred at "people I disagree with" using the broadest brush, and capped by an illogical comparative analogy. It had no business in an educated debate, but I decided to try you by giving you what you appeared to want.

Evidently, what you want instead is an echo chamber for your PoV. If so, why come here?

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson to Abigail Adams, 1804. ME 11:51

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

Commuter: On the other hand, pretty much everything the government does winds up in court eventually. At that point, it is the judges' plain duty to not enforce an unconstitutional law, and to not support executive actions that are not within the bounds allowed to the federal government by the Constitution. It's also the duty of Congressmen not to pass unconstitutional laws, and of the President to not enforce them or to undertake other unconstitutional acts, but the courts are the only ones that even pay a little attention to this duty anymore.

Two points. First, the underpinning for stare decisis is less a mechanistic, inflexible application of prior adjudications to current matters than it is a recognition that society must have a reasonable expectation that the law today will be the law tomorrow so that individuals can plan their affairs accordingly. This is plainly the case in contracts, real property law, testamentary dispositions and the like. Discrimination and abortion are not equivalent in any way to, e.g. estate planning or taking out a 30 year mortgage on a home. No one plans their lives or orders their affairs around the right to abort or to discriminate. Stare decisis is not a compelling reason for maintaining a doctrine that was bad law when written and remains so today. By bad law, I mean the Court had to invent parts of the constitution to have a basis for its opinion. Few lawyers or constitutionalists defend Roe on its merits, although many agree with the real life result.

Second point--Jim S' comments, aside from being unnecessarily confrontational, miss the larger issue. Roe deprives people of the right to vote on an issue that simply cannot be found in the text of the constitution. That many religous people oppose abortion because of their faith does not equate to to those same people wishing to deprive the citizenry of the right to decide the issue. Jim S would deny all of us the vote, the religous conservatives are willing to let the people decide.

I should not have said conservatives, implying all conservatives. That was plainly wrong and I apologize. However, my point is valid for those who consider themselves pro-life Christian conservatives. That is where they derive their beliefs from. It is what they think everyone should live according to even if their religious beliefs are different or if they have no religious beliefs at all.

Another thing that I find interesting is what apparently is a belief that there is nothing in our society that shouldn't be determined by the majority. Tell me if I'm wrong but it seems that what is being said is that unless it is explicitly defined in the Constitution as a right then a simple majority can pass any law formed from any belief, religous or otherwise to control what their fellow citizens do. It certainly seems to be what this absolute belief in simple majority rule would come down to.

Jim S - Yes, in sum, most "constitutionalists" believe that the the Constitution should control what government can and cannot do. If the Constitution grants the federal government power to do something, Congress has the right to enact laws using that power -- even if the laws represent poor public policy. For example, Congress has the power to exact duties on imports. Using this power, Congress could impose a duty of 1,000% of the value of all imported products. While I think this would be poor public policy, the courts should not prohibit Congress from doing something stupid on the basis of some "right to economic privacy" that is not articulated in the Constitution.

I disagree with your formulation of "unless it is explicitly defined in the Constitution as a right then" a law may be passed "to control what ... citizens do." Properly viewed, the Constitution LIMITS governmental power. So, unless it's explicitly granted permission by the Constitution, the federal government should not have any say in the matter -- no matter how large a majority desires governmental action. Thus, abortion should NOT be a federal question. Neither should growing marijuana for personal use. The fact the federal Constitution does not permit the federal government to address the abortion question does NOT mean state governments cannot. So, yes, unless the state constitution (or the federal Constitution) prohibits state (or federal) involvement, a simple majority should be able to enact laws regulating their fellow citizens' behavior. Even if such laws represent poor public policy. Else, why have a Constitution?

Finally, I fail to understand your focus on what motivates someone's support for a position. Does a law's affects change based on the religious attitudes of the law's supporters? If so, would you support a test that would disqualify people who hold certain views from voting or otherwise participating in government? Dr. King's supporters supported civil rights legislation for religious reasons. Others supported such legislation for venal reasons. Should we have ignored Dr. King's religious based moral appeals and only listened to those whose arguments were more self-serving?

Johnathan Strong writes:

>>>overturning roe would be in accordance with this originalist view of the constitution (i speak generally). thus, no hypocricy."

Well, Johnathan, so would overtuning a HOST of decisions affecting civil rights in America, since the "original" Constitution writers saw fit not to count EVERYBODY in American Society as equal to the white male landowners they represented.

--Cobra

Cobra: That was changed by the proper process - amendments - rather than by judicial fiat.

Cobra,

So you think the slave-owning states should have had more influence in Congress and a greater proportion of federal electors? What in the world makes you think that would have been a good thing???

To Jim S.

It is not a question of an " absolute belief in simple majority rule", although there is perhaps something good that can be said for democracy. Rather, the notion is this: either the constitution is a self-limited document, or it is an etch-a-sketch on which a 'simple majority' of unelected judges can write, rewrite or unwrite what they please. The constitution, as written, provides (1) that some matters that are not subject to the will of the majority and (2) an amendatory process that can place other matters beyond the will of a majority. What the constitution does not authorize is amendment by fiat. It doesn't matter whether a particular amendment by fiat is a 'good' or a 'bad' thing; what matters is , beyond matters of construction and application, the constitution says the governed decide what the rules are, period.

"Constitutional right" is a meaningless term, as we are born with our rights. They are not granted by government, and the enumeration of several in the Constitution is an abbreviated guarantee of them. The Constitution goes on to state that the enumeration shall not be construed as to deny or disparage other rights retained by the people (the Ninth amendment). The very assertion of the concept of Constitutional Rights is a violation of that amendment.

And attorneys wonder why we don't trust them, when they inject such falsehoods into political debate.

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