Asymmetrical Information

FindLaw has some very good annotations on the Ninth Amendment, if you'd care to see them.

http://caselaw.lp.findlaw.com/data/constitution/amendment09/

In any event, it appears that the "non-enumerated rights" shouldn't have to be defined, on the logical face of it. Otherwise, they'd be enumerated, wouldn't they?

Oh, and by the way: your analogy of property vs. income taxation is going to bite you in the butt, I'm afraid:

http://caselaw.lp.findlaw.com/data/constitution/amendment16/

The income tax was considered unconstitutional until they, you know, put it in the constitution.

I'm aware of that, Ken, but the sixteenth amendment is then in conflict with non-enumerated "natural rights". I think that actually illustrates the problem with non-enumerated freedoms.

Even so, my butt's been bitten before.

This is why, once something has been found to be unconstitutional, an amendment has to be made to make it allowed. The sixteeth amendment would be considered an exception to the nineth rule if someone actually argued that it violated natural rights.

This is why it would be perfectly fine (though I think, like, the worst idea ever in the entire world, bar none) to have a "Defense of Marriage Amendment", even though many would consider it blatantly unconstitutional.

Good piece, Mindles.

It's interesting to note the wide gap between what people think ought to be in the Constitution and what's actually there. If there's nearly as much consensus about such things, though, what's to keep those on the pro side of the consensus from amending the Constitution accordingly?

Nothing whatever, as far as I can tell.

That said, the idea of making the Constitution the only law of the land is...abhorrent to me. Do that and you'll wind up with a Constitution like that of Texas. That's something else to consider.

I think if people imagine the Constitution ought to be worded differently so that the recent brouhaha in Texas couldn't have happened, they ought to draft a new one and submit it to public scrutiny. If nothing else, it'd keep them busy for a while. And who knows? Something good might come out of it.

I merely meant to suggest that Jimmy Madison had worried that people might take a narrow reading of the rights protected by the Constitution, and had tried (unsuccessfully, it seems) to guard against it...

re:
>>What I would really welcome is some assurance that if we accept the court's powers to enumerate the un-enumerated, that the freedoms I expect from a philosophical basis will not be compromised. I don't really have that.

Well, but if we follow your road we do have the assurance that if only those freedoms explicitly mentioned in the Constitution are protected, then the freedoms you expect from a philosophical basis will be compromised with probability one.

I fail to see how this is supposed to be a better situation.

If legislatures can force drivers to wear seatbelts and motorcyclists to wear helmets on the grounds that govt may have to foot the bill for medical costs if they are injured, why can't legislatures regulate other conduct which increases the risk of substantial medical problems such as AIDS? Consensual incest can still produce babies with horrible medical consequences. Shouldn't society have a voice? If legislatures can outlaw behavior because of concerns that such behavior is harmful to self and others (drug use), why can't it outlaw anal sex or incest?

The overwhelming majority of poor people in America are those in households where the mother was never married to the father(s) of her children. Sex may seem like a completely private act, but it can have significant consequences. Society incurs substantial costs in welfare spending, crime, juvenile delinquency, drug abuse and reduced productivity. Clearly one could argue that the state has a very significant interest in reducing out-of-wedlock births. I don't think a state should outlaw sex between unmarried people, but the argument is not frivolous and such a law is clearly not in violation of the text of the Constitution.

I don't agree that states should make adultery a crime, but I can understand the argument that society has legitimate interests in promoting stable marriages. This type of question is one which is left to legislatures, not the courts.

Sex is not as private as people want to believe. It can have serious consequences for society. To say that society should be required to bear all the consequeces without ever having a voice is irresponsible.

"Jimmy Madison"? Ugh. That sounds like the name of an upcoming Adam Sandler movie.

Sorry for the irrelevancy of this post, but the practice of doing that to the names of historical personages affects me like nails on a blackboard. (Yes, "Abe" Lincoln too, even though that's a bit more common.)

Brad:

Thanks for the clarification. Please remember, "my road" would be to make personal freedom explicit in the Constitution. The freedoms I expect from a philosophical basis already are compromised.

As far as the likelihood of an expansive constitutional amendment, I share your skepticism and therefore concede you have a point.

I'm willing to be pragmatic (i.e. take the second best route) about many things, but find it harder when it concerns a declaration of basic principles restricting government.

Stan:
Some of those costs are directly related to transfer programs run by the state (ie welfare). That, unfortunately, is the circular logic of state expansion - the more state programs, the greater the "cost" of social deviance.

However, many of those costs are not related to the size of the state. I still can't justify the state having a say in, for instance, out-of-wedlock births.

If our rights are subject to this sort of interpretation, won't they appear and disappear at the court's whim? Is that what should happen to "natural rights"?

Whether that's what "should" happen to them or not, it is inevitable. When the Constitution was drafted, the "natural rights" of slaves (namely, the right not to be slaves) were not addressed. Nor were the "natural rights" of women.

As time goes on, some natural rights are "discovered", so to speak. Other rights that people had been accustomed to think of as "natural rights" are "discovered" not to be, after all.

So, yes, even "natural rights" are subject to the court's "whim". But the alternatives to having a court interpret the Constitution are 1) have every possible right chiseled in stone, with the understanding that there are no rights beyond those (subject to further amendment of the Constitution, of course), or 2) not to have any rights at all, except what the even whimmier whim of Congress might decree.

In the time it's taken to write this, you say that your solution is to make "personal freedom" explicit in the Constitution. Do you have a sample formulation you'd like to try out on us? It will either have to be longer than the current Constitution (and will, with certainty, violate your "expected" freedoms at some point in the future), OR it will have to be so vague that courts will have to interpret what it means anyway, which will be no improvement on what we have now.

Now if you'll excuse me, I have to go buy some more quotation marks.

I can think of a couple of different ways to interpret the Ninth Amendment:

1. "We mean for this Constitution to protect every single right that a person has. (Against the federal government, that is; if our descendants want these rights to be protected against state governments as well, they can always pass an amendment.) We've listed all the rights we can think of, but we're only human and we're bound to have overlooked a few. If you think of any we've overlooked, feel free to treat them as enumerated."

2. "We've listed all the rights we mean for this Consitution to protect, but don't take that to mean that the others don't exist; after all, rights come from God/Nature, not from us. But for protection of all the rights not listed here you're going to have to rely on the democratic process."

Now, is there any good reason for rejecting (2) out of hand, as most of us seem to be doing? I mean this as a question, not a challenge; I'm no constitutional scholar.

The allusion I made to incorporation of rights in (1) brings up another point that I haven't seen anyone else raise: assuming there's a right to privacy lurking in the Ninth Amendment, how do we know that it can be used to strike down state laws and not just federal ones, given that only some of the enumerated rights in the earlier amendments have been "incorporated" in this way?

[...] why can't legislatures regulate other conduct which increases the risk of substantial medical problems such as AIDS?

Simple—one has only to consider the costs of acquiring information regarding sexual encounters. Use of a condom, limiting the number of sexual partners and enforcing regular testing can all help prevent the transmission of HIV. Yet the costs which arise in attempting to acquire information regarding these things is prohibitive. You can argue that these things should be legislated, but it seems kind of irrelevant given the difficulties provided by information.

"Well, but if we follow your road we do have the assurance that if only those freedoms explicitly mentioned in the Constitution are protected, then the freedoms you expect from a philosophical basis will be compromised with probability one."

This would be a conclusive argument if the only way in which philosphically expected freedom could be compromised were by the failure to recognize an actual right. But since rights are ultimately held against other humans, it's also possible to compromise freedom by recognizing a bogus right....

The right of each individual, to obtain sexual gratification, by force if necessary, from another person of his own choice, shall not be infringed. (Since I'm claiming to find this in the Bill of Rights rather than passing a new amendment, I need lots of commas.)

....which makes the probabilities a bit murkier.

The comment "out-ofwedlock" births and regulation raised this question in my mind regarding the conflict of "natural" rights and the Government's need to regulate:

1) Given: Reproduction/child birth is a woman's natural right.

2) Cthe State pass a law that licensed the right. Words to the effect that "only married woman who post a surety bond for the future child's financial support may conceive a child."

3) Could the State recognize the right of woman to reproduction, recognize the state's right to ensure the safety of the fetus, and then regulate the actions a woman takes while prgnant; such as civil fines for drinking alcohol while pregnant, or not getting enough sleep(they could keep a log like truck drivers).

I know ridiculous examples, but at first blush all constitutional.

Brad DeLong says:

if we follow your road we do have the assurance that if only those freedoms explicitly mentioned in the Constitution are protected, then the freedoms you expect from a philosophical basis will be compromised with probability one.

This is an awfully deterministic view of the democratic process -- that is, that if the courts don't read the constitution as protecting a particular freedom, it will, as day follows night, be infringed by the representatives we elect. But we can change that, can't we -- and if we can't, then maybe those freedoms aren't so essential to We The People after all. I'm all in favor of freedom, but the minute we stop expecting our elected representatives to worry about it outside the context of appointing judges, we are headed way in the wrong direction.

The Ninth Amendment has to mean something. There have to be non-enumerated rights that are retained by the People outside of the scope of the enumerated rights protected in the first 8 Amendments. Otherwise, the 9th Amendment is just filler to get to a nice round number.

Strict constructionists always carp about the Constitution not saying "abortion" or "sodomy" or "privacy" (or rights thereto) in the text, as a basis for not recognizing those rights. If so, then why ignore the language that is in the Constitution--namely, "non-enumerated rights". The 9th Amendment is a textual repudiation of this particular strain of Constitutional interpretation.

To object to the Courts usurpation of the right to define the scope of the 9th Amendment and those pesky "non-enumerated rights" is really an political argument, not a legal one. The 9th Amendment empowers the Courts to make decisions such as Lawrence.

Those who say the Constitution should be specifically amended to enumerate the previously unenumerated rights, I say this: If one desires control against judicial activism, it is really YOU who should seek to amend the Constitution to remove the 9th Amendment.

The Democratic Process argument cuts both ways.

My view of the Ninth amendment is rather simple but follows close with Brad De Long's comment about narrow readings of the Constitution. I don't believe that it is a kitbag holding all sorts of 'rights' waiting to see the light of day. I see it as a directive to read the Constitution narrowly in favor of government power, and broadly with regard to individual rights. Ideally, every government action should be rooted in Constitutional text in some way, and the Ninth Amendment is a shield against attempts to say that the Constitution is silent on some point and therefore the government can do what it darn well pleases.

Hmm. Great post.

I think something often ignored here is the rule of unintended consequences. Namely, the assumption that privatization of the marirage contract would actually result in a net reduction of state tampering in people's private lives isn't an obvious one, to my reckoning.

It looks good on paper to say that we could reduce the state's influence in people's personal lives by privatizing marriage. But has the contemporary experience of rampant illegitimacy actually borne that prediction out? Or has it formed the basis for an ever-expanding labyrinth of "social services" and clumsy family court dictates?

Also, if we're to assume that one of the government's few legitimate functions is the adjudication of disputes between private individuals, will the role of family courts become more or less intrusive with the abolition of marriage as an official, monopolistic, government-sanctioned and -defined contract? As the definition of marriage and family devolves into a completely "anarchic" (in the non-pejorative sense) morass of infinitely malleable interpersonal contracts, can we be confident that the courts will be at all up to the task of untangling what any given family ought to look like in the event of some conflict?

Is the law a fine enough instrument to produce anything like justice where such vagaries are concerned? Does their record in this arena offer us any consolation? I hardly think that the family court system will be any less a factor in the lives of children under a system in which "parent," "spouse," and "child" can be taken to mean whatever the parties in question say they do, depending on the particulars of their interpretation of their own arrangement (which will invariably benefit themselves above all). Ultimately, the state will be burdened with establishing a web of precedent on these issues so thick that I hardly think it could result in a substantive improvement on our current situation.

I lean libertarian myself, but these kinds of questions really give me pause. Maybe my concerns are totally ill-founded. But my lense is colored by harsh experience. I was the child of two parents who married over and over (nine times between them, I think) and saw the wake of financial and emotional devastation this left on four different sets of children. I don't claim to have an answer, much less a refutation, to the libertarian conclusion; I'd just like to know what everyone thinks about these kinds of issues, so I can get some ideas.

The real problem is all of us struggle between the desire to be left alone, and the desire to prevent someone else from doing something awful. Lawrence's neighbor is likely racist and homophobic. He shouldn't have called, but he did. When the police broke in, they could have done nothing, but instead they arrested Lawrence.

Virginia used to prevent inter-racial couples from marrying. A number of states had eugenics laws.

Can the Constitution possibly enumerate all the ways in which a state should not legislate? No, the minds of humans are infinitely devious and meddling.

It is possible to imagine a system of laws where the judiciary has no power to overturn state laws except where they conflict with a narrowly defined scope of federal power. But this country would look a lot more like the EU and a lot less like we do today.

we are all human; we are all flawed, including the Sup. Ct. justices. but my view is that i cannot leave the final decision over fundamental human rights in the hands of a majority in a state legislature. the urge to meddle is too strong. No matter how unpopular anti-majoritarian decisions are, this country is too diverse and its history too tainted not to have some judicial oversight over state legislative decisions.

the right of privacy is not the only place that the court has struggled to articulate a meaningful standard. Potter Stewart's standard for pornography was "I know it when I see it." thanks, potter, but not very helpful. the standard for a "substantive" due process violation (don't ask) is conduct that "shocks the conscience." but whose?

we have an imperfect system, but i'd like to hear someone articulate a better one.

Mindles,

I said in my post that I didn't think that such a law was a good idea. I was merely trying to point out that the state/society can have some very legitimate interests in the consequences of so-called "private acts between consenting adults." I think it is an appropriate area for a legislature to examine the balance of whether state intersts are significant enough and proposed legislation effective enough to infringe upon some personal liberty interests. I suspect that you and I would most likely reach very similar conclusions if we were legislators.

But the absolutist idea that the state can never, ever have a dog in that fight fails to acknowledge reality.

FDL,

You say the urge to meddle is too strong for a legislature. We certainly have seen a lot of cases where the urge to meddle was to strong for the Court to resist. Of course, the people can vote for the legislature and the Court is composed of members for life. If everyone is prone to error, I think having a veto power in the hands of the people is better than having dictatorial power in the hands of 5 justices.

Sage --

I think your legitimate concerns contain some circular reasoning. You suggest that one result of privatizing marriage might be more rampant illegitimacy...thus requiring an ever-growing labyrinth of government support. But why should one suppose that government is the right and proper party for dealing with illegitimacy? Greater government involvment does not have to naturally follow every poor outcome in life.

Also, I think the courts would be more than up to the challenge of enforcing contracts that memorialize relationships. They do so with business contracts every day (and have done so for hundreds of years), and business relationships are just as varied and private as marriages. And I can tell you for sure that business contracts that I deal with as a lawyer every day are generally WAY more complicated than the implicit agreements I share with my lovely wife.

Indeed, pre-nup agreements are more and more common, so in this sense marriage is already somewhat privatized.

And courts are already heavily immersed in marriage disputes in the form of "domestic relations" courts. But rather than mete out results based upon a Judge's unique notion of "fair", why can't the court simply enforce the promises entered into by both parties to the contract (who determined for themselves what was "fair" at the outset)?

Oh...you mention "justice". A court's duty (both morally and legally) in contract litigation is NOT the service of "justice". Instead, its duty is DISPUTE RESOLUTION according to the terms of an agreement willingly entered into and negotiated by the interested parties. This is not just semantics. A court should not step in to save us from ourselves and our poorly-thought-out promises in the name of justice, except perhaps in cases involving promises by minors or mentally handicapped.

Those who say the Constitution should be specifically amended to enumerate the previously unenumerated rights, I say this: If one desires control against judicial activism, it is really YOU who should seek to amend the Constitution to remove the 9th Amendment.

On the off-chance you were referring to one of my comments, Yoshi, that's exactly the opposite of what I'd envisioned. The Constitution doesn't convey rights on people (as I see it, anyway), it guarantees that certain rights are not to be infringed by anyone at all, not even the states.

If you follow that line of reasoning, you might be able to imagine what other Constitutional amendments might be devised along the lines of the Second (but less ambiguously worded).

That said, I feel I need to caveat the above with this: I don't know squat-all about Law or even much about the Constitution. So weight accordingly.

Whatever you want to say about the 9th Amendment, it most certainly does not contain an unennumerated right to an abortion. People on this board, and especially DeLong who knows better, talk about the 9th as if it was meant to contain a universe of enforceable restrictions on the government. Two thoughts on that. 1) Why did they bother actively ennumerating rights? 2) What precisely about this expansive theory would argue against a personal 'right' to rape or a personal 'right' to torture? And just to head off the 'rights of your fist terminate at my nose' argument, remember late term abortion is definitely about subordinating a fetus's right to live to a woman's right not to carry a child to term.

Whatever the 9th Amendment is for, I can tell you quite definitely that it is not for the purpose of letting Courts run willy-nilly discovering new rights. 18-year olds did not get the vote by Court decree, they got it by the constitutionally mandated amendment procedure. If you can't explain why ALL the further amendments are necessary after the 9th, it may be because you are taking an overly expansive view of the 9th.

Yoshi,

I think it might make more sense to read the Ninth and Tenth Amendments together. Then what you have is an admission that the Bill of Rights isn't exhaustive, coupled with an assurance that the States and their legislators may be trusted to defend any obvious rights left out.

I find the idea that the Founders left the Supreme Court the power and the right to declare anything a "right" that they wanted to — well, incredible.

Sebastian,

Just in case you weren't using rhetorical legerdemain in your question " 1) Why did they bother actively ennumerating rights? 2) What precisely about this expansive theory would argue against a personal 'right' to rape or a personal 'right' to torture?", Madison actually did answer the first, and the second is certainly implied throughout the Constitution that a person has rights to himself and his property.

Go into Findlaw, type "Constitution" into the search box, pull up the 9th amendment, and read the Annotations. There are also some great references to it, including Madison's commentary in the Federalist Papers, as to why it's there at all.

I obviously am not going to get into the abortion question.

Mindles H. Dreck wrote:

"2."fub" attacks comments made by someone else (unnamed) who may or may not be a constructionist and is therefore, apparently, similar to me."

I certainly didn't mean to attack anyone in your blog discussion. I find your discussions enlightening.

If I was attacking anything, I was attacking a common rationalization process. I find certain rationalizations for state prohibitions of conduct to be at best less than rational, and in some cases motivated by mere distaste for the class of people affected, or worse.

Specifically, some rationalizatoins only consider the narrowest consequences of a ban. Prohibiting marriage, or any and all benefits and rights arising from marriage to some class of people on grounds that the prohibition might rationally be believed to prevent the spread of disease, ignores those effects of the ban which could not even arguably diminish the spread of disease.

Disallowing an injured or dying patient hospital visitation by a life-long partner simply because they are not married and cannot be married, does nothing to prevent spread of disease. The rationale for denying that benefit to those who cannot be legally be married cannot be to prevent disease. I think that support for that aspect of a marriage ban must arise from some less rational motivation. Yet those who would prohibit giving any marriage-like benefit to same-sex partners seem to overlook those consequences, or to pretend they don't exist.

Disallowing parental rights of a surviving partner is much the same: bad consequences for children with none of the claimed benefit.

My comments were not about anyone's argument in this blog discussion. They addressed some generic lakunae in the greater national discussion.

Mike--

Thanks for the reply. To be clear, I don't think that the state ought to make illegitimacy per se the subject of specific policy. What I mea is that the poverty, crime, and other social pathologies that invariably attend places with high illegitimacy rates do come in for attention by the government, whether that attention is warranted or not. In short, single parents actually do use more social services, of every concievable kind, and more social programs are always being proposed to deal with the problems that illegitimacy tends to produce. I can't imagine that this trend would reverse itself with the privatization of marriage.

You kind of confirm my point when you say that the contracts you deal with daily are a lot more complex than the one between you and your wife. That's precisely because you're talking about a private contract of a highly individualized character. A "standard issue" (read: state-issued) marital agreement is always going to be lower-maintenance, and require less cumbersome and inconsistent legal wrangling and jurisprudence than could be expected in a world in which no two marital agreements were the same. Again, I think it's fair to assume that a lot fewer people would bother with the entire process, particularly the poor, if they thought that they had to marshall the assistance of competent legal assistance just get married in the first place. It's at that point a matter of drawing up a pre-nup no matter who you are and what your assets come to, and no one has the inclination to do such a thing. In reality, I think having to detail the precise contours of your marital agreement, and having it subject to minute turns of phrase and semantic legal gamesmanship from the very outset, isn't much of an incentive factor.

You're right, though, that in the end "justice" isn't the business that the courts are in. It might seem like a semantic distinction, but you're right to correct my use of the word. This is as it should be, of course, but it's for that reason that I'm so concerned. The law is a very blunt instrument indeed, and all the platitudes in the world about serving the best interests of the child are no match for the reality of court-ordered family arrangements, which are almost always a grotesque joke. I'd like to see that kept to a minimum, and I'm just not sure that familial anarchy is the way to do that.

Michelle-

I know what you're trying to say by reading the 9th and 10th Amendments together... but it doesn't work. The 10th Amendments is the limitation of Federal Powers to only the enumerated powers. The fact is that it says that the Federal Government can only exercise specific enumerated powers, and that the States OR the People are delegated the rest.

So reading them together doesn't mean that the 9th Amendment means that the States are the protectors of our liberty, because of that pesky "or."

Plus, it would make no sense given the countermajoritarian role the Courts were supposed to play under our system of government.

yoshi,

I take your point; the Ninth talks of "rights" and the Tenth of "powers." But if the Ninth was actually meant to give the Supreme Court power to develop new rights and enforce them on all the States, it was an extraordinarily clumsy way of saying it. And the Constitution and the early Amendments aren't generally clumsy; they contain terms that need interpretation, like "freedom of speech," but they don't grant unlimited discretion to any Federal body anywhere else.

Michelle--

I beg to differ. The Constitution has plenty of awkwardly worded parts--hell, I still don't know what a "well-regulated militia" means, how much bail is "excessive," and how much process is "due." Or the clause about guaranteeing a "Republican form of government."

Where the Constitution is clear is in its discussion of the structure of government. Articles I - III are basically our government's charter.

That said, the 9th Amendment is not a tabula rasa, and anyone who thinks that is smoking something. It says that the People retain individual rights whether or not they are enumerated in the Constitution. Retention implies previous possession, which means that you have to make an argument based in history, which is relatively fixed (although open to revision and interpretation). Moreover, you have to do so within the context of precedent.

All said, lots of discretion, but by no means unlimited.

My point is that this Amendment exists, and it is up to those who fear judicial activism to legislate/amend their way around it.

Yoshi,

Yes, "excessive" bail needs interpretation, like "cruel and unusual punishments" (no doubt as much legal ink as been spent over that "and" as was spilt on the "and" in "high crimes and misdemeanors" a few years back). I will leave the "well-regulated militia" to the 2nd-Amendment folks, who know a lot more about it than I do. I doubt "a republican form of government" would have puzzled anyone at the time; it obviously meant something with an elected representative body and without a hereditary monarchy. How you'd classify for this purpose, say, the USSR under Stalin is sort of a tough question — I don't think the Framers had ever encountered a non-hereditary dictatorship, much less one tricked out with a Parliament. But of course no American state has gone in such a direction, so no one's had to study the point.

As for "due process" — well, don't get me started. As far as I can see, carrying out a sentence with "due process of law" meant that the person convicted had been convicted under a preexisting law, with the ordinary legal protections and the ordinary legal procedures. It meant just that the government couldn't tear up the law to get at the result it wanted. Unfortunately that isn't what "due process" now means, and there's nothing anyone can now do about it.

But never mind that. Back to the 9th. You say "retention [of rights] implies previous possession," which is quite right. But rights aren't granted by governments, on the theory of the Framers; they're God-given or Nature-given or what have you. Also "unalienable," meaning that you can't relinquish them even by your own consent. (Yes, I know that's from the Declaration of Independence rather than the Constitution; just trying to map out the intellectual territory a little.)

So the discretion the 9th allows on your theory is indeed very broad. The right of self-government by elected representatives wasn't old and traditional; on the contrary, it was very new and very controversial. But the idea was that it had always been there — all men had this right, whether they were able to exercise it or not.

So why doesn't the same apply to any other right the Court should want to find under the 9th? Why need it have any history or tradition?

>>Thanks for the clarification. Please remember, "my road" would be to make personal freedom explicit in the Constitution. The freedoms I expect from a philosophical basis already are compromised.

Ah. That might well work better than what we got.

Of course, then you have to guard against people like Rehnquist who argue that judicial review should not apply to constitutional provisions protecting individual rights and freedoms--that those "rights" should be simply hortatory advice to Congress, rather than things that a judge will base his or her decisions on...

>>Sorry for the irrelevancy of this post, but the practice of doing that to the names of historical personages affects me like nails on a blackboard. (Yes, "Abe" Lincoln too, even though that's a bit more common.)

It can get worse...

"Tommy" Hobbes
"Johnny" Locke
"Marky-Mark" Tullius Cicero
"Pubby" Cornelius Scipio...

:-)

"You say the urge to meddle is too strong for a legislature. We certainly have seen a lot of cases where the urge to meddle was to strong for the Court to resist. Of course, the people can vote for the legislature and the Court is composed of members for life. If everyone is prone to error, I think having a veto power in the hands of the people is better than having dictatorial power in the hands of 5 justices.

Posted by stan"

First, under our present system, there is no veto power "in the hands of the people." If you are referring to elected legislators, they are not the people, and are not necessarily as responsive to even the particular 51% of their constituency who voted them in as to the special interests that fill their campaign funds. If they advertise hard enough when the next election comes up, maybe the voters won't even know what they've really been up to, but without advertising money they are definitely sunk.

Second, the American political system (and probably any system of periodically re-elected representatives and executives) contains a strong bias towards excessive government activism. Few people go into politics because they want to do nothing and block others from anything too. Then when Congressmen are putting together their next campaign, they want to include "positive" accomplishments - and poking the government's nose into even more private matters apparently counts as "positive", while blocking intrusive, redundant, and just plain stupid legislation is "negative". When some particularly egregious misbehavior is making national headlines (say, dragging a black man to death behind a pickup truck), few pols are making political points by discussing how unlikely it is that those who aren't deterred from such things by the existing laws against murder, etc., are hardly going to be deterred by passing another law against it... Also, the more power the government arrogates to itself by legislation and executive order, the more power the politicians have, and the more bri.., er, campaign contributions they can collect from those with the money to pay to keep the government from mucking around in their business too. And so, without other restrictions than political, governmental activity will not be at the level preferred by the majority of the people, but rather at the maximum level that doesn't utterly outrage the majority.

The courts have a different set of imperatives, and it works out that when they exercise their power in opposition to the legislature or executive, the effect is nearly always a net reduction in government power. The Constitution gives plenty of reasons for overthrowing laws and restricting executive power, but few cases where the court can legitimately claim powers not already clearly granted to it. When "judicial lawmaking" does happen, it's either an utterly unreasonable Constitutional stretch (like deriving special treatment for blacks from the 14th Amendment), or the legislature has left the law in such a muddle that the court do it's job of interpreting the law without in effect rewriting it. Yes, sometimes they make errors, and sometimes the error is to "make laws", but it's rare. On the other hand, many Senators and Congressmen have practically made a career out of repeatedly passing laws that are in gross violation of Constitutional rights. (McCain and Feingold, for instance.)

markm wrote:

"The courts have a different set of imperatives, and it works out that when they exercise their power in opposition to the legislature or executive, the effect is nearly always a net reduction in government power. The Constitution gives plenty of reasons for overthrowing laws and restricting executive power, but few cases where the court can legitimately claim powers not already clearly granted to it."

I agree with the first sentence, that the best case for court decisions is when the courts act against the powers of the other two branches. Those almost always increase citizens' rights. But the courts depend on the other two branches for enforcement of the court's orders.

With the second sentence, "... cases where the court can legitimately claim powers not already clearly granted to it", I have a question. I've always thought that courts really had only one power: the power to say "if you bring another case like this one to me, I'll rule the same way."

Granted that the executive branch (US Marshalls or armed forces, or state equivalents) enforce court orders. But should the executive and legislative refuse to enforce a court order, what power does the court have? Courts don't have armies, but the executive does, and the legislature controls the purse for the armies. So, courts only have power if the executive and legislative branches defer to the courts' order(s).

Situations demonstrating the courts' actual dependence don't present themselves too often. Eisenhower's use of the 101st Airborne at Little Rock is an example of the executive deference that is necessary for a court to actually exercise power beyond "I'll rule the same thing again." Had Eisenhower declined to enforce the SCOTUS ruling in Brown v. Board, what could the court do? Not much I think.

Recall that the contstitution doesn't grant SCOTUS power to review legislation or executive orders for "constitutionality". The SCOTUS granted that power to itself in Marbury vs. Madison, and has exercised that power ever since, with deference to do so from the executive and legislative branches.

Brad DeLong: "Jimmy Madison"? Show a bit of respect for your betters, please.

“The SCOTUS granted that power to itself in Marbury vs. Madison, and has exercised that power ever since, with deference to do so from the executive and legislative branches.”

Yup, and we should continue to honor this tradition. Is it perfect? Of course not, but anything created by human beings will inherently leave something to be desired. Should we explicitly recognize the Supreme Court in this role? Nope, it’s better to leave a few loose ends hanging. Citizens of a republic such as our must be granted a certain leeway to respond to dramatically changing circumstances. We should beware of any perceived need to dot all the “i”s and cross all the “t”s.

>>Finally, at the risk of being excommunicated by my more conservative readers, I don't think the state should have any say in consensual relationships. Thus, the State should restrain itself from subsidizing such relationships and therefore have no say in polygamous relationships or even in non-reproductive adult incest, as repulsive as you may find that. Animals and children don't provide informed consent.

Hmm. It strikes me that the hierarchy implicit in this thinking is the wrong way around. I don't think it's the job of the government to decide what sort of relationships people may have with each other, but I don't believe either that our existing definitions of such relationships came from government in the first place. Marriage is a far more fundamental part of society than government is. Arguably, the state can play a helpful role in recording marriages, but marriage certificates should be seen as the state's record of a marriage, not permission for it. So, on the one hand, I would forbid government from redefining marriage by telling certain classes of people that they may not marry, but, on the other hand, I would forbid government from redefining marriage by telling certain classes of people that they may marry.

As for non-reproductive adult incest, there is a major problem with that: children aspire to adult sexual relationships.

I adamantly disagree with the idea that the state should not be concerned about the marriage contract. "Mindles H. Dreck" seemingly makes the mistake of merely focussing upon the sexual aspects of the relationship. However, marriage is first, last, and foremost, about the raising of children. The development of our future adult citizens is of utmost importance to the overall community. I may have abandoned my traditionalist religious roots--but I haven’t yet lost my sanity.

"marriage is first, last, and foremost, about the raising of children"

Sad to say, a marriage certificate can hardly be considered training or qualification to raise children. And I don't see any causal relationship between being heterosexual and being a good parent, if anyone suggests that. I suppose I will listen to the argument that ceteris paribus a child is better off with parents of each gender in a committed relationship with each other.

However, ceteris ain't even close to paribus.

If it's all about raising children, why not make it a 'reproducing license'? (for some reason a Handmaid's Tale came to mind when I wrote that).

I didn't say that the Constitution SHOULD be studied like the bible. That just seems to be what true strict constructionalism would lead to, rather than now where strict constructionalism is an excuse for the bench to only legislate those ideas that the strict constructionalist agrees with. Same with states' rights -- notice how few states' rights advocates were excoriating the SC for legislating in violation of state's rights in the Michigan affirmative action case.

“Sad to say, a marriage certificate can hardly be considered training or qualification to raise children. And I don't see any causal relationship between being heterosexual and being a good parent”

Whoever said that a marriage certificate guaranteed successful child rearing? The overwhelming evidence merely indicates that marriage dramatically increases the odds in the child’s favor. A single parent is confronted with a more difficult challenge. Gay couples who raise children are a statistical minority. Such atypical arrangements probably account for less than .001% of all families.

“If it's all about raising children, why not make it a 'reproducing license'? (for some reason a Handmaid's Tale came to mind when I wrote that).”

Marriage is not solely about raising children. The Judeo-Christian tradition also places much emphasis on the loving relationship between a man and a woman. The Handsmaid Tale dealt with the other extreme. Viable human societies seek to find a balance between the two existential needs.

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