Whosa Whassa?
A dollar to anyone who can make this sentence make sense*:
"[The conservative judicial philosophy] defers to the judgment of elected officials at the state and national levels, preserves federalism and the separation of powers, and empowers individuals to use their property free from arbitrary regulation. "
How can a court both defer to the judgment of state and national elected officials and protect individuals and their property from "arbitrary regulation"? Doesn't the latter mean that the courts will judge the "reasonableness" of legislation? How is that deferential?
Sounds to me like this much bally-hooed conservative judicial philosophy can have its cake and eat it too.
Link.
*This statement is not an offer for a unilateral contract.
posted by Number Three @ 8:41 PM
9 Comments:
OK dollar- here I come! Emery, do you remember Tom Holmes? Curatasaurus and I sometimes fondly and laughingly reminisce about the day he said, out loud, in a Constitutional Law class, that the Constitution rated a 7 out of 10 on the hypothetical "importance of law" scale.
In conservative judicial philosophy, the Constitution rates a 10 out of 10. Conservative jurists defer to the legislature and the executive only when the actions of those coequals do not violate the provisions of the Constitution. Thus, it is possible to have both deference and judicial review.
Mmmm. Cake.
OK, but that's not usually how we use the word "deference." I mean, if I'm driving with .2 % BAC, and I'm arrested, no one ever says that I deferred to the police. The same thing goes for the Constitution. If the "political branches" clearly violate the Constitution--say, they pass a law saying that convicted felons will be "subjected to cruel and unusual punishment," then striking that law down is not a problem for any kind of judicial philosophy. (Some version of Thayer's clear mistake doctrine, which you seem to be referencing, but my c+up example is not a very good example.) The issue is how courts treat legislation when there's a close or difficult question and a vague phrase in the Constitution, like "due process of law" or "public use" in the Takings clause. (Kelo seems like a very deferential decision to me, although few conservative jurisprudes liked that kind of deference.)
If the courts actually subject legislation to searching examination for reasonableness, then there really isn't deference. Deference means that, even though I might disagree, I will go with your assessment. I defer to you.
It's that kind of deference that is not possible when the word "arbitrary" sneaks into your judicial philosophy. Especially when the word "arbitrary" comes into close proximity with the word "regulations."
And cake is good.
Hmm. Not a bad point, but Congress delegates the power to make regulations to the executive branch, so a truly deferential position would be to let Congress police the regulations enacted using power that it has delegated to the bureaucrats. Now, there may be problems with that approach--I'm probably more in favor of aggressive use of the due process clause than CL--but it would be deferential.
Now, one could want to reinvigorate the non-delegation doctrine. There is something, maybe even a lot, to be said for such an approach. But that's not a deferential approach.
My problem, if it's not already clear, is that the "conservative judicial philosophy" may be conservative, but it's NOT deferential. Not really.
The real problem with Stephanie's argument is the unstated assumption that the Constituion's meaning is self-evident. Conservatives tend to appeal to "originalism" much as religious fundamentalists appeal to a "literal" reading of the Bible even as they're inventing imaginative interpretations like "the rapture," that have little textual support. I'm skeptical of the "living constitution" idea too, but originalism is largely a myth or, worse, a pretense.
Emery mentions Kelo, appropriately, I think, as an example of true deferenece. But we might also note other doctrines where the cons have only a loose grasp on the Constitution as a basis for their activism: state "sovereign immunity," the very narrow reading of interstate "commerce" advanced by Janice Rogers Brown (and others), Clarence Thomas's contention that the religion clauses shouldn't have been incorporated, and the general conservative hostility to criminal rights--which form the bulk of the B.o. Rights--and presumption toward prosecutors and police. I'd be less skeptical of this whole "we're just upholding the Constitution" idea if it weren't so selective and so convenient a mask for partisan politics.
Hey, Em--hope this user name offends your sensibilities less. Oh, and I'll try not to agree with you so much in future comments. For now, though, you are the most brilliant blogger ever. I hope Frances knows how "cool" you are!
More things to bet against Emery on:
Slam dunk contests;
Cage fighting (all Xtreme fighting);
Charm offensives.
If Bible Boy knows one thing, it's that the Law-ard does not appreciate biblical throwdowns.
I was brought up in one of those churches where all the Bible stories were told in Sunday school on the felt board. If you don't know what I mean, I'm sorry. It was better than any video game. The ancient Israelites got themselves in every sort of fix . . . the lion's den, fiery furnaces, bondage, captivity, etc. But they wore such colorful robes. At least, in the 1970s felt board version they did.
Don't even get me started on the New Testament.
Like Elvis, my favorite religious/gospel (?) song is How Great Thou Art. But in my church, growing up, we had a flip-board with pictures and the lyrics for that song, and that song alone.
Rambling over. I'll let TMcD defend himself. Unless Curatasaurus and TMcD are the same person. (Joke--I've finally figured out who TMcD is. I think.)
I admire Curat's ability to fire lame ad hominems in order to disguise his utter lack of substantive argument. I have often used the tactic myself against Freedom-blog, although always for noble purpose and usually to better effect. Too bad he preempted any slam dunk contest jokes in advance.
I'm still waiting for a defense of the biblical support for "the rapture." Although maybe if Jesus sucked amendments 4-8 halfway up to heaven so that his minions could wreak bloody havoc on all those liberal evildoers that might explain Curat's interesting observation about the Bill of Rights and criminal rights. Good also to know that he considers conservative "originalism" of equal intellectual pedigree to the Left Behind series.
La la la. . . still waiting on a coherent defense of originalism. My comparison of conservative originalists to fundamentalists was, of course, partly rhetorical, but since Curat, like most Fed Society types, seems to have trouble with "metaphor," as well as complex reasoning--indeed anything beyond sixth grade level--I'll try to type slowly and use smaller words. So, a few points:
1) the analogy between originalists and Xian fundies draws on the fact that both groups invent imaginative, selective, and ahistorical readings of sacred texts and then claim them to be "literal" readings, dogmatically denouncing any debate on the issue. Not coincidentally, both positions tend to be held by the same people (e.g., GOP wingnuts--no offense), making this analogy a good window into the originalist mind. Both groups dream of a simple and happy, Edenic past where there are no conflicts or varying interpretations, and where holy authority (the founders or God) is respected absolutely. Wingnuts need a strong daddy. They like spankings.
2) amendments 4-8 certainly are "the bulk" of the BoR if you look at word or clause count rather than just amendment numbers. But you're hung up on the numbers (4/10), so let's look at them substantively. #1 is obviously important. #2 is an anachronism (sorry, big word!): a largely useless anti-U.S. military sop to the antifeds, worried about royal armies, that has never been applied to the states or employed to restrict federal regulation. It might as well not exist. Same for #3. #9 is what we might call the "strict constructionists are full of crap" amendment, but it is hard to apply and you guys like to pretend it isn't there, so we'll throw it out too. #10 is Madison's bait and switch to the antifeds: you want states' rights, you get vague and meaningless pablum (or, "screw you, we're keeping our Constitution"). So the ratio is really 4/6, not 4/10. (Your point about #7 is a minor technicality, since this amend. still concerns limitations on the justice system to defend citizens' rights in court).
3) the ad homs I was noting were (a) "gibbersish," and (b) the Soup Dragons. Although Tenacious is "free. ..to do what I want...any ol' time," I prefer the song's originators ("founders"?) the Rolling Stones, who like baitin' them "Sweet Neo-Cons." Maybe one day Curat can aspire to being a one hit wonder.
Oh, and, Curat, in case you were wondering, that last post was your spanking. Now respect my au-thor-I-tahhai.
Now who's living in Cloudcuckooland? By "model girlfriend" I assume you mean "plastic figurine" of Princess Leah. OK, this is getting dull.
For the record, I've never challenged the idea that historical debates about the meaning of key clauses, amendments, etc., are irrelevant, just that the conservative take on "originalism," is more myth than honest legal theory. Conservatives and liberals both want deference to legislatures on some issues and strict application of constitutional provisions on others; both play fast and loose with interpretative issues that serve their interests. The cons just tend to be worse about it now because (a) they generally control the courts, and (b)they're caught up in a myth of their own moral purity, thanks to "orignalism." Commerce clause, eminent domain, federalism, and 2nd amendment cases are all examples where cons override deference in the name of a dubious reading of history and text; in criminal rights and 14th amendment cases (equal protection, due process), cons override strong original readings of the texts to argue for deference. (and no, I don't think "substantive due process" is logical or original, but that only happened b/c the privileges & immunities clause got neutered in Slaughterhouse).
Finally, saying that Kelo protest is the "rapture" of the originalists is, in fact, metaphor.
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