Friday, May 07, 2004
barnett, bainbridge, separation of powers.
debate going on over judicial activism. barnette is mostly right, bainbridge is way off, although the andrew jackson quote is partly right.
bainbridge seems motivated by a burkean talibanism i'll call authortarianism, and he might call non-libertarianism. bainbridge thinks the majority should be able to impose its moral agenda on the rest of us - stuff like criminalizing gay sex and lobster, stoning witches, that sort of thing, and that courts should not interfere.
[i'm not accusing bainbridge of being anti-lobster himself, just of supporting a government that would have the power to be anti-lobster if it wanted to be.]
in the american revolution, the people got rid of the king and ceeded a small part of their autonomy to a limited government. one of the limits was separation of powers, and a constitutional charter. this wasn't a unique idea, it was part of a process that included king john and cromwell.
the separation of powers requires that congress originate plans, but that the plans are subject to executive and judicial veto. the executive veto can be on either policy or constitutional grounds. the judical veto is limited to constitutional grounds, and only comes up in cases or controversies brought before it.
the founders had reason to be proud of their system of checks and balances.
in order for the government to violate the soveriegnity of the people by exceeding its authority, a whole series of things would need to happen.
a majority of both houses would have to violate their oaths of office by voting yes instead of no. the president would have to violate her oath of office by signing rather than vetoing legislation, and other executive branch people would have to violate thier oath of office by following orders instead of saying, I can't, I gave my word not to. then, a majority of the court would have to allow the unconstitutional thing.
it is not activist for the court to do what the constitution says it should - declare the law of the land, enforce the supremacy clause. that is activist in the sense of not being dead.
it would be activist for congress to raise its own army. that's an executive function.
itwould be activist for a president to wage an undeclared war - declaration of war is a legislative function.
it was activist for a kansas city judge to raise taxes to pay for school bussing - taxation is a legislative function. that's a legitmate form of criticism of court action.
when courts defer to the legislaure, in cases that encroach on reserved rights of citizens, that is judicial passivity of a sort that should not be praised; it is misfeasance and a shirking of duty.
here's the jackson quote, before it veers off into error.
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.
Sometimes an honest legislator may have a sincerely held view of the constitution which is different from that of the court, just as the justices occasionally disagree among themselves. but what we have now is an abdictation by two of the branches, which act like only the court needs to care about the constitution, and the legislature may do anything it can get away with. that's a prescription for tyrrany. to me, thisa basicand obvious point, but my law school colleagues had no idea what i was talking about, and oppsing counsel at the AG's office thinks their client is the legislature, rather than the state constitution.
debate going on over judicial activism. barnette is mostly right, bainbridge is way off, although the andrew jackson quote is partly right.
bainbridge seems motivated by a burkean talibanism i'll call authortarianism, and he might call non-libertarianism. bainbridge thinks the majority should be able to impose its moral agenda on the rest of us - stuff like criminalizing gay sex and lobster, stoning witches, that sort of thing, and that courts should not interfere.
[i'm not accusing bainbridge of being anti-lobster himself, just of supporting a government that would have the power to be anti-lobster if it wanted to be.]
in the american revolution, the people got rid of the king and ceeded a small part of their autonomy to a limited government. one of the limits was separation of powers, and a constitutional charter. this wasn't a unique idea, it was part of a process that included king john and cromwell.
the separation of powers requires that congress originate plans, but that the plans are subject to executive and judicial veto. the executive veto can be on either policy or constitutional grounds. the judical veto is limited to constitutional grounds, and only comes up in cases or controversies brought before it.
the founders had reason to be proud of their system of checks and balances.
in order for the government to violate the soveriegnity of the people by exceeding its authority, a whole series of things would need to happen.
a majority of both houses would have to violate their oaths of office by voting yes instead of no. the president would have to violate her oath of office by signing rather than vetoing legislation, and other executive branch people would have to violate thier oath of office by following orders instead of saying, I can't, I gave my word not to. then, a majority of the court would have to allow the unconstitutional thing.
it is not activist for the court to do what the constitution says it should - declare the law of the land, enforce the supremacy clause. that is activist in the sense of not being dead.
it would be activist for congress to raise its own army. that's an executive function.
itwould be activist for a president to wage an undeclared war - declaration of war is a legislative function.
it was activist for a kansas city judge to raise taxes to pay for school bussing - taxation is a legislative function. that's a legitmate form of criticism of court action.
when courts defer to the legislaure, in cases that encroach on reserved rights of citizens, that is judicial passivity of a sort that should not be praised; it is misfeasance and a shirking of duty.
here's the jackson quote, before it veers off into error.
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.
Sometimes an honest legislator may have a sincerely held view of the constitution which is different from that of the court, just as the justices occasionally disagree among themselves. but what we have now is an abdictation by two of the branches, which act like only the court needs to care about the constitution, and the legislature may do anything it can get away with. that's a prescription for tyrrany. to me, thisa basicand obvious point, but my law school colleagues had no idea what i was talking about, and oppsing counsel at the AG's office thinks their client is the legislature, rather than the state constitution.
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