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Thursday, June 23, 2005

Why the Constitution matters

Pretty much every time an interesting Supreme Court decision comes up, Honest Partisan and I end up in a debate about the limits of governmental power, with Honest Partisan pretty much taking the line that so long as a decision is democratic, it should be honored by the courts and that Federalism is not an important principle, the merits of a particular democratic decision are all that should matter. (HP, If I have misstated or misunderstood your view, feel free to correct me, and I will make an update noting that.) I vehemently disagree with this point of view. Our Constitution, and any Constitution, fulfills two basic purposes. First, it codifies how we decide various issues. In our case, it puts various decisions under the control of the 3 branches of Government, explains what level of support (majority, supermajority, executive decision) is needed for each of these decisions and how the representatives that will make these actual decisions are selected by the people who are accorded sovereign power. For the most part, this is well understood and seldom a cause for controversy in and off itself. The second thing that it does is place limits on what the government has jurisdiction over, what sort of things can be decided upon in the first place. This is, I feel, often poorly understood and certainly an area in which there is much controversy. The Founders were very concerned about a Democracy without these limits, as illustrated by this quote from Tomas Jefferson:

A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.
I am not of the opinion that just because the Founders believed something it is of necessity true. However, I certainly agree with this statement. If there are no limits on Governmental action, if with a 51% vote anything can happen there is no reason for a minority to acquiesce to the will of the majority rather than resorting to violence. Limits on Governmental power means that we can afford to settle or differences democratically because our basic rights our guaranteed regardless of whether we are a part of the majority or not. Certainly the recent Supreme Court decisions that have expanded governmental power and, seemingly to me at least, have rewritten the Constitution, do not mean that all of our basic rights are gone. However, they have certainly made it clear that the Court does not feel bound by the plain meaning of the Constitution and that the ideology, rather than the scholarship, of Judges is of paramount importance. This can best be illustrated about the abortion debate. The Supreme Court had 3 possible ways it could view abortion when Roe v. Wade came up. They could take the view that there was a basic right in the Constitution that guaranteed an abortion. (this is of course what they concluded.) Theoretically I suppose they could take the opposite view here, that a fetus was a person entitled to constitutional protection. Both decisions would base themselves on basic individual rights however. They could take the view that there was no basic personal right to an abortion but that the Federal Government had jurisdiction over the matter (this didn't really come up as there was no such Federal Law, although their ruling obviously mooted the issue.) They could take the view that this was a decision left up to the several states. (This was what they explicitly ruled against, on grounds of abortion being a personal right.) Theoretically, it should not matter one bit whether a judge approves or disapproves of abortion when deciding this issue. It does not matter if abortion is a good idea or a bad idea. They are not deciding what is 'right' they are deciding on where the power to make that decision lies. I don't know of anyone who believes that this is what actually happened in Roe vs. Wade however. Both the pro and the anti-abortion sides seem to believe strongly that this decision was made on the basis of whether the individual Judges thought abortion was good or bad. This is why both parties see the question of whether a judge supports or disapproves of abortion as relevant to the confirmation process. In truth, whether Roe v. Wade is a 'good' decision about abortion or not is not valid. I am pretty happy with the compromise it made in fact. The question is, was the constitution correctly interpreted as to who has the power to decide this issue. I think that most people, who examine this decision dispassionately, will conclude that it was not. We have of course mechanisms for altering the limits within the Constitution. This is purposefully difficult to do, as the bar for amending the Constitution is set very high. It is also largely moot at this point, since it is far easier to get 5 Judges who agree with you on the Supreme Court than it is to actually change the Constitution. This is of course why the political battles over Judges have become so partisan in recent years. Since we have abandoned the notion that Judges interpret the Constitution based upon what it actually says, rather than what they believe is right there is no good reason for the minority party to abide by previously established norms. The Supreme Court is a game for all the marbles, and there is absolutely no reason to limit ones tactics. It is this factor that probably inspired Sen. John Cornyn:
Cornyn, citing recent cases of violence against judges, said he wondered "whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people ... engage in violence."
Cornyn was pilloried for this statement on the grounds that he was insisting this violence. I certainly do not think that violence against Judges is justified, but his argument has a lot of merit. If there are no limits on Court decisions, if they are not bound to interpret the Constitution rather than rewrite it, then there are no protections in the Constitution for a minority and there is no reason to trust in Democracy rather than force to achieve one's end. Of course there is good news for anti-abortion advocates in the recent court decisions. Based upon the Raich decision I can see no reason why Congress can't ban abortions on interstate commerce grounds. Based upon the Kelo decision I see no reason that a municipal government facing a desiring a higher population can't seize a woman's womb for 'public use' and demand that she reproduce, so long as she is compensated.


Blogger honestpartisan said...

Long, rambling response here:


6/23/2005 03:44:00 PM  
Blogger RFTR said...

The concept to which you are referring is known as "tyranny of the majority."

Was slavery ok because a majority supported it for so many years? Well, no, becuase blacks weren't enfranchised. OK, so what if they were and the vote was still in favor of slavery? Would that make it ok? No, it would be tyranny of the majority.

6/24/2005 09:44:00 AM  
Blogger honestpartisan said...

If abolition was put to a real majority vote before the Civil War, it likely would have won. The North as more populous than the South back then. The South's furious defense of state's rights and property rights (the latter exemplified by the judicial activist court in the Dred Scott decision) reflected awareness of that.

I don't think you help your argument by bringing something up on which reasonable people can't really disagree about. It doesn't give much guidance for an issue on which reasonable people can disagree -- unless you arrogate to yourself the authority to determine what is and isn't reasonable.

If you disagree with something a legislature does, vote accordingly the next time around. But if you disagree with something the Supreme Court does -- well, you're basically stuck.

6/24/2005 02:39:00 PM  
Blogger Dave Justus said...

Here is perhaps a better example, which I think might make this more clear.

I don't think it unimaginable that a strongly Christian locality would vote for a measure that all public office holders be Christian. Similary, I don't think it impossible that a deep blue locality, Berkeley for example do the opposite and ban Christians from holding office. I would wish that neither would happen, but certainly such a thing is imaginable.

I would fully expect the courts to strike down any such legislation. If it refused to, I would not be content that the people in those towns could 'vote accordingly next time around.'

Certainly I doubt that the Courts would rule in such a manner. There is no evidence of a trend in that direction in Court rulings that I can see, and certainly there has been a trend toward the Kelo decision.

However, that does not, so far as I can tell, make the Kelo decision any more right, or the hypothetical decision I am speaking of any more wrong.

6/24/2005 08:23:00 PM  

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