Scott Hardie | April 9, 2005
I'm not bothered all that much by Tom DeLay's alleged ethics violations; they're not very different or very worse than most other politicians'. But I finally joined the group of people alarmed by Tom DeLay when I read his latest rhetoric about the judiciary. (link)

DeLay is upset at "judicial activism," specifically when judges ignore the "will" of Congress and the "will" of the people. He said, "I believe the judiciary branch of our government has overstepped its authority on countless occasions, overturning and in some cases just ignoring the legitimate will of the people... Legislatures for too long have in effect washed our hands on controversial issues from abortion to religious expression to racial prejudice, leaving them to judges who we then excoriate for legislating from the bench."

Let me say first: DeLay's new crusade was launched when judges refused to have Terri Schiavo's feeding tube reinserted, despite the "legitimate will of the people" to have it reinserted, and by inference Congress's will to the same. The problem is, polls have consistently shown that a majority of Americans supported Terri Schiavo's right to die, and that a huge majority of Americans opposed Congressional involvement in her case. (link) So DeLay has already committed the sin of mistaking his values for everybody's values.

But the larger issue is that DeLay doesn't seem to understand the purpose of the court. Courts don't "legislate" even when Congress has failed to do so. Courts interpret the law, and higher courts review those interpretations to make sure they were done right. DeLay is correct that Congress has sometimes been too vague, especially on controversial issues like the ones he mentioned, but that's usually the result of so many reasonable, well-intentioned people having honest disagreements about those issues. It would take decades at the very least before Congress would be able to draft legislation either banning abortion or giving it full legal protection without the law being overturned in court; until then, Congress has to compromise on a difficult issue, and so does the country. All the courts can do is make sure that each new abortion law is consistent with existing abortion laws and not a radical change.

Judges are supposed to ignore the will of the people, legitimate or illegitimate, because the will of the people has nothing to do with the law. The will of the people should be kept as far away from the law as possible. Laws are written to protect the rights of people like Terri Schiavo who want to die, even if millions of people want them to live. Laws are written to protect the rights of people like Michael Newdow's daughter who doesn't want to be compelled to utter a phrase of religious conviction, even if millions of people want schoolchildren everywhere to utter this phrase. For a society to function according to the "will of the people" is to become totalitarian, in which the individual has no rights and protection from the greater society. Society favors stricter gun control (link) so there go Mike's firearms. Society opposes gay marriage (link) so there goes my pet issue too. (Lucky for Anna, there's strong support for compelling pharmacists to dispense birth control (link) regardless of their religion.)

But the thing is, the "will of the people" is an easily manipulated phrase. Every Communist dictator calls himself a man of the people. Bush believes he has a mandate despite being elected & reelected by the slimmest margins of victory. And people like Tom DeLay confuse their opinions for the mass societal opinion. It's almost impossible to use correctly the "will of the people" as a measurable tool by which to govern, because it is wide open to interpretation and it is even more widely open to misappropriation. The "will of the people" must have no place in the law or the interpretation of law. Members of Congress like Tom DeLay often forget that, but it's the court's job to remember that. It's why we have court at all.

The organizers of the conference and Congressional staff members who spoke there called for several specific steps: impeaching judges deemed to have ignored the will of Congress or to have followed foreign laws; passing bills to remove court jurisdiction from certain social issues or the place of God in public life; changing Senate rules that allow the Democratic minority to filibuster Mr. Bush's appeals court nominees; and using Congress's authority over court budgets to punish judges whom it considers to have overstepped their authority.
I don't know what the hell the filibuster issue has to do with the judicial authority issue, other than both being political wastes of time. I'm not even going to consider that one. But can anyone honestly say that the other three "steps" are not disastrous ideas? If these proposed steps were to happen, no judge would ever be able to overturn a law Congress had written because that would mean ignoring Congress's will. All laws would stem exclusively from federal and state Congresses without any check or balance in place other than maybe a presidential veto. It would give Congress the power to decide anything and never be challenged; Congress could decide that all Americans have to attend church every Sunday morning and none of us citizens would have anywhere to go to put a stop to it. After all, that's the matter of God in public life, and only Congress should be able to tell you who to worship.

Sometimes I wonder what logic (if any) the people who decide these things could possibly be thinking. Other times I wonder why anybody, let alone a majority, would elect into public office people like Tom DeLay, who have no grasp of what careful framework holds our nation together or why it should stay in place. But mostly I just worry that the brilliant work by our nation's founding fathers, not to mention two hundred years of progress since then, are being eroded by people who are so wrapped up in getting their way that they don't see the potential their way has for destroying the system. I'm rarely an alarmist about our country's future; I don't think we're going to bomb ourselves into oblivion and I think our country could remain a dominant world power for generations to come. But in three hundred years, if our society has collapsed into the kind of wrong-headedess, religious oppression, and social regression that we fled in Europe in the 1600s and 1700s, our great-great-great-grandchildren have people like Tom DeLay to thank for it.

Jackie Mason | April 9, 2005
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Kris Weberg | April 9, 2005
I agree with everything Scott said but for the last sentence -- the Puritans may have been fleeing religious oppression, but they were hardly champions of tolerance themselves. And by the 1700s, the only reason Europeans were coming to America was financial or professional -- to make one's fortune at farming, fur-trapping, and the like.

The idea of American freedom dates to the 1600s, yes, but it's in the remainder of Renaissance humanism, and later in Enlightenment theories of man. You'll find more of the basis for America as we idealize it today in the writings of Rousseau, Locke, and Bacon than in anything written by the Puritans or, for that matter, the early British colonizers like John Smith and Walter Raleigh. The former were simply upset that their own brand of theocracy hadn't won out in Britain, and the latter were working expressly for the British empire.

Erik Bates | April 10, 2005
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Aaron Shurtleff | April 10, 2005
Scott, I agree with about 99.9% of what you're saying. The other 0.1% is really of no consequence, but I'll say it anyway. Bush did get elected originally by the slimmest of margins, in that we agree. He was re-elected fairly well though. There was no real (by real I mean sane..as far as I know) controversy. He won. And he thinks he has a mandate because a LOT (by a lot I mean...well, a LOT) of people (by people, I mean democrats) spent the election making about how the American people don't agree with Bush, and we need change. Well, Bush gained in the election, even though there was a huge push to get people out to vote to boot him out. He thinks he has a mandate because, frankly, he gained when no one thought he would. The majority spoke, they wanted Bush for another 4 years, for whatever reason they decided that. If I was George, I'd say I had a mandate, too!

Don't get me wrong, I'm not a Bush fan. But he won the election.

But DeLay...major asshole. He could star in Spaceballs.

Anna Gregoline | April 10, 2005
I personally don't think that half of America is a good ENOUGH mandate, but that's just me.

Scott Hardie | April 11, 2005
What Anna said. In my book, 51% of the vote is not a mandate.

Kris Weberg | April 11, 2005
Nor is an approval rating lower than that of any second-term President in the last 30 years. Even Nixon had better ratings in 1973.

Jackie Mason | April 12, 2005
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Aaron Shurtleff | April 12, 2005
I can live with that! :)

Anmd, honestly, I doubt many folks agree with Bush on ALL issues. In fact, I'd say there would probably be few (I hope there'd be very few!).

I'm just one of those people who tries to move on and just get the next four over with. Unless Bush does something amazingly stupid (not saying it can't happen, but...), he's in until 2008ish. Well, OK, there is another way he's not in until 2008, but I won't even write it down, because I am NOT advocating that, nor am I having anything to do with anyone who thinks it's a good idea.

Although, wasn't there an Indian curse concerning President's born in a year ending in a 0? :P

Anyhow, I don't think Bush's "mandate" (if it exists) gives him the ability to ignore what 49% of America thinks. No no.

Steve Dunn | April 13, 2005
Wow - lots to respond here. I don't have the time or energy to write a treatise (please, conceal your disappointment) but I will mention a few points:

1) Talking about whether a president has a "mandate" leads to situational logic 100% of the time. The people who support him say yes, those who don't say no. I come down on the side of those who believe the person who is elected president should just go ahead and do whatever he's going to do. No disrespect intended, but I suspect many of you are making these arguments because you do not support the current president, not because you're ideologically devoted to big-time mandates. They just don't occur very often. Historically in presidential elections, 50% is pretty darn good. Bush's victory in 2004 was clear and convincing, especially after the 2000 debacle and the passionate intensity with which his opponents, shall we say, oppose him.

Nixon got way less than 50% of the vote in 1968, though won big in 1972.
Carter got almost exactly 50% in 1976.
Reagan got a little over 50% in 1980 (though won big in the electoral college) and won HUGE in 1984.
Bush won convincingly in 1988.
Clinton got waaaaaay less than 50% in 1992 losing the popular vote by 14,000,000 between Bush and Perot.
Clinton got barely over 50% in 1996 (and, as I recall, immediately declared a "mandate" on the basis of that 50%)
Bush got less than 50% in 2000, and even got fewer votes than Gore in second place.

And it's not just recent history. Kennedy barely beat Nixon in 1964. FDR had a close one in 1944. Wilson got way less than 50% in 1912. Cleveland got way less than 50% in 1892. Hayes got less than 50% in 1876. On and on.

Folks, 50% really and truly IS a mandate. Bush's victory in 2004 was clear and convincing by any reasonable standard, and considering the turnout and the stakes, it was a knockout. Speaking only in terms of electoral results, he is one of the most successful presidents in history. The Republicans have picked up seats in the House and Senate in both national elections since 2000. That's a staggering achievement, and historically almost unprecedented.

I know this doesn't make many of you happy. And while I voted for Bush, his jugggernaut does not make me happy, either. I think you need to prepare yourselves, though - Bush is likely to be treated very kindly by history. I know this sounds insane, but remember, in the 1980s, Reagan's opponents hated him with every bit of the passion you feel about Bush today. If there is genuine and sustained progress in the Middle East over the next 30 years, Bush will get the credit that Reagan is now given for winning the Cold War.

2) DeLay is a loathsome man. However, his comments on the judiciary are not, in and of themselves, completely wrong. He was wrong on the Schiavo case, but he is not completely wrong on the separation of powers.

I disagree strong with this statement of Scott's: "Judges are supposed to ignore the will of the people, legitimate or illegitimate, because the will of the people has nothing to do with the law."

I think I know where Scott is going with this, but we must be careful not to throw the baby out with the bathwater. To say that the will of the people "has nothing to do with the law" is far too strong. The will of the people is expressed in elections. We elect representatives to government (local, state, federal, all of them). Our representatives then write and pass laws. When we are displeased with the laws our representatives write, we elect new representatives. In this way, the will of the people has everything to do with the law.

I think what Scott was getting at is the important matter of minority rights. Freedom of speech, for example, is something that is guaranteed to each of individually. If Congress were to pass a law impermissibly infringing on that right, the judicial branch exists to strike down that law - even if majority of people support it. This is to prevent what is commonly called "tyrrany of the majority." As another example, roughly 75% oof people oppose partial birth abortion, but the courts have generally upheld the practice as being part of the privacy right enunciated in Roe v. Wade and subsequent cases. There are a million other examples.

But wait. Remember, the Constitution is really just a bunch of "laws" and the Constitution can be amended. If enough people in the USA decided it would be better to repeal the First Amendment, that could be accomplished. In this way, even our Constitutional rights are ultimately subject to the "will of the people." The will of the people, or, the consent of the governed, is an essential aspect of our form of government. Our laws are, in a sense, nothing more than a statement of our shared values. To the extent the will of the people changes, the laws change, too. Setting aside the ominous specter of repealing the First Amendment, this happpens in smaller ways every single day.

DeLay is addressing the separation of powers. Consider this statement of DeLay's: "Legislatures for too long have in effect washed our hands on controversial issues from abortion to religious expression to racial prejudice, leaving them to judges who we then excoriate for legislating from the bench."

He's really knocking the legislature more than the courts. He's saying that the legislatures out to be the ones making laws, and courts ought to be in the business of applying the laws created by the legislature. His beef (at least the one stated in the quote above) is that the legislatures have abdicated their responsibility, and the courts have stepped in to fill the gap.

On this, Tom DeLay, much as I hate to say it, is clearly right.

Consider the McCain-Feingold campaign finance reform bill. During the debates on that bill (which the "will of the people" supported) many of its doubters considered the bill to be an unconstitutional infringement of the First Amendment right to free speech. Some of them voted for it anyway, knowing that the bill would be challenged in the courts. Some folks (can't name names, sorry) actually voted for the bill because it was politically expedient to do so, with the hope and expectation that the offensive portions would be struck down by the courts (which indeed happened).

Is this an abdication of legislative responsibility? I think it is. Senators and congressional representatives take an oath to uphold the Constitution. I think it is fair to criticize legislators who vote for bills they believe to be unconstitutional. DeLay (and it's not just DeLay, so let's not get too distracted by his demonic persona) thinks the legislative branch ought to take its constitutional duties a little more seriously, and that the courts ought to leave legislating to the legislators.

The separation of powers among the three branches of government is a wonderful and intricate thing, but at the end of the day let us consider this question: between the legislative and judicial branches, which should be superior?

I think DeLay would say the legislative branch and subject to several caveats (for example I'm leery of jurisdiiction-stripping statutes) I think he is right. There are several good, non-partisan reasons for this.

The main thing is that the legislative branch is accountable to the will of the people. Congressional representatives, for example, stand for election every two years. By contrast, federal judges are appointed for life. So they're never elected and they cannot easily be removed. In this sense, the judicial branch is less democratic than the legislative branch.

Second, the courts' own processes and rules acknowledge the superiority of the legislative branch. In virtually all situations, enactments of congress are given great deference by the courts. The courts are supposed to read what the laws say, and do what they say, period. If the law is unconstitutional, the courts are supposed to strike it down. Otherwise, they give it effect. In other words, the courts are backstops against overreaching by the legislative branch, but judges are not supposed to substitute their own judgment for the judgment of the legislators.

True "activist judges" are indeed a problem. However, throughout history the label "activist" has been applied to judges who genuinely upheld their duty to enforce the requirements of the Constitution. Much of the work of ending legal race discrimination in America was accomplished by so-called "activist" judges who, in retrospect, merely upheld the plain language of the 14th amendment. (Note that DeLay referred to that same example in saying the legislative branch was asleep at the switch).

OK, that's all I can do for now. I lied about not writing a treatise.

Kris Weberg | April 13, 2005
So, Steve, if I'm getting this right, the fact that nearly half the voting population passionately opposes BUsh means he's extremely popular; the fact that Reagan gets credit in popular opinion -- not really in histories, actually; don't confuse books by media personalities with actual histories -- for the Cold War despite a historical consensus that a variety of factors, including thirty years of containment and defense spending policies, really did much of the work; and a notion about the direct election of legislatures that was not, in any way, the intent or the letter of the Constitution as originally written or elections as originally held, constitutes your evidence on
these points?

Anna Gregoline | April 13, 2005
Off Topic: The term "partial birth abortion" is kind of a weird term. It's a non-medical term to refer to an intact dilation and extraction - D&X. It's an extremely rare variant of a more commom abortion procedure known as dilation and evacuation - D&E. The fact that the term "partial birth abortion" is used so often, especially in the framing of laws, makes no sense, because it doesn't mean anything to the medical community. Panels have found NO circumstances where intact D&X would be the ONLY option to save the life or health of a woman, but it is still an option. So laws against "partial birth abortion" are kind of moot, in my opinion.

Anyway, back on topic.

It's not really about whether Bush was fairly elected or not for me - it's the arrogance of any President saying he has the "will of the people" when over half of them did not vote for him and do not support him. For a person who is supposed to represent all of us, at least a nod in the opposition's direction would be appreciated, but of course, Bush can't see us with his cute little blinders on.

Scott Hardie | April 13, 2005
Steve: Now that's what I was looking for. Thank you. :-)

What I was thinking earlier in this discussion (when I wrote about the "mandate") was that yes, Bush did get elected, and that means he gets to do his job as president, but 51% of the vote is not enough popular support to make sweeping changes to government. His numbers weren't a landslide like Reagan had in 1984. But you're on to something with your point that Republicans won most Congressional elections in both 2000 and 2004; obviously, there is widespread support for a conservative agenda and Bush does have the support he needs to make major changes. I had failed to take that into account. (I can't tell you how relieved I am that Bush has gone on the record disagreeing with DeLay about the judiciary.)

I do agree with DeLay that the legislature should be more decisive and more clear when authoring laws so as to prevent this confusion. I just don't want jurisdiction stripped from the judiciary in the process. If Congress has been lying down on the job, as DeLay says and we agree, then how would it solve anything to take authority away from the courts and give more of it to Congress?

When I wrote that "the will of the people has nothing to do with the law," I was writing about interpretation of the law by the judiciary, not about Congress. (I started the sentence as "Judges are supposed to ignore the will of the people...") Judges are appointed, not elected, for a very important reason: They need to ignore popular opinion, emotional pleas, public whim, social trends, and just about every other way by which the populace could influence their decisions. That's what that entire paragraph, and most of my diatribe, was about. Yes, the public does elect Congress to write the law; that is where "the will of the people" has and deserves influence.

I wasn't asleep during social studies class any more than I was asleep during economics class. :-) Yet both you and Kris have recently found it prudent to explain the basic principles of government and commerce to me. I shall again reassure you that I'm clear on the concept, thanks. If I make a statement that contradicts the principles, know that I make the statement in full awareness of the contradiction, and that I'm usually arguing the way ethics should be, not the way ethics are. Personally, I'm not terribly interested in discussing the way ethics actually are, because it's a dead end; we know it already and we can't do anything about it. By discussing possible alternative codes of ethics – the way you think the world oughtta be, or she thinks, or he thinks, etc – I can learn something that I don't already know, and that at least does me some good. That's where I'm usually trying to steer discussions like this, into the realm of the philosophic, but I think maybe I should be more explicit about it than I have been. I do get tired of being informed of facts that I already know, of facts that may be related to the subject of my argument but are irrelevant to the concept of my argument, of facts that miss my point. And y'all wonder why I sympathize with Anna being misunderstood so often. :-)

(Glossary: I'm using "ethics" to mean a shared code of morality, an agreement about the way society should function. When I say "my ethics" I don't mean my morals for how I live my life, I mean my opinion of how society should function. In reality, I know I'm the only person actually following "my ethics.")

Amy Austin | April 13, 2005
Regarding Anna's tangential (but valid) interjection, here are two links that better describe what and why there is such fuss over the "partial birth abortion" -- one from each point of view, and I warn that the "pro-life" page (as one might expect), the first link below, may be a bit too graphic for some.

(link)

(link)

Amy Austin | April 13, 2005
hehehe... "cute little blinders" -- while I imagined it to be said with such vitriol, just made me chuckle

Steve Dunn | April 13, 2005
Sorry Scott - didn't mean to insult. I was only responding to what you wrote. I'm somewhat hit-and-run here, so I confess on missing some context.

Kris, in answer to your question, no, you're not getting it right. [Lengthy sarcastic rejoinder omitted]. If you are ever curious about my educational or professional background, or the basis for particular assertions of mine, I'll be glad to fill you in.

Jackie Mason | April 13, 2005
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Steve Dunn | April 13, 2005
One of my co-bloggers has just posted comments on the separation of powers issue here. (link) I've only skimmed his piece, but at first glance he seems to be addressing genuine present concerns, not the broad philosophical points I sketched out above.

Kris Weberg | April 14, 2005
Steve, I really don't care about your professional background. Scientists can be wrong about science; lawyers wrong about law.

I don't think that an argument to the effect that "people think X now, ergo X is true" is a valid argument. The move in history is, over the longer term, a debunking move. And, again, popular notions of history are rarely the same thing as actual, I-did-research-and-thought-about-things history.

I don't think that an argument to the effect that "Bush has a mandate, if we lower our standards for what constitutes a mandate because very few Presidents actually have one" constitutes a valid argument. A mandate generally means that a sizeable majority of the people support an elected official's policies or person. It's hard to get a mandate in America. All you've done is pointed out just how hard that is, and then mistaken your relativist redefinition of the term for anything other than the form of a concept, a form emptied of content by the relativism you've employed to make it useful for you argument.

And as to Tom DeLay, well, your interpretation of him would seem nonsensical to anyone who understands that a) there WERE abortion laws, and that a court challenge knocked them down; b) the Terri Schiavo case hinged on a legislature PASSING A LAW, whicht eh courts struck down.

Legislatures were doing the job DeLay demands of them. It's just that the jobs he wants done are, well, not fucking Constitutionally permitted.

Constitutional amendment is not a power strictly of the Legislative branch of the Federal government -- but you knew that.

Finally, the POINT of the judiciary is that it's "nondemocratic" -- or rather, that it resists the contingent, transitory and changing will of the demos, the people, in favor of maintaining the Constitutional standards that underpin a functional American democracy. The Founders distrusted the masses -- need I remind you that the Senate was not originally subject to direct election, nor IS the Presidency in the juridical sense? DeLay doesn't want the Legislative branch to somehow retain its Constitutional oath, he wants a Legislature that passes laws like the one that stripped jurisdiction over Terri Schiavo's case from the state courts, where it rightfully resided.

He also has a problem with state prosecutors carrying out their duties, I hear.

Steve Dunn | April 14, 2005
Kris, you often make very good points. I don't understand your hostility. I think if you take a deep breath and read carefully, you'll find that what I actually said is substantially different from your cartoonish parody of what I said.

I hesitated to make an appeal to my own authority, and I don't blame you a bit for not caring whether I have pertinent expertise in certain areas where others - even you - demonstrably do not. Honestly, I was mostly just put off by your suggestion that my knowledge is derived from "books by media personalities." I was also baffled to be criticized for producing insufficient evidence by you, in a posting containing no evidence to support your broad conclusions. There's also a stylistic difference between us. I attempted to describe esoteric ideas using simple language. You tend to do the opposite.

Obviously, I failed to communicate effectively. Scott thought I rehashed high school civics, and you think I don't know what I am talking about. Very well. Such is the peril of dashing off late-night message board postings on subjects about which volumes fill libraries. I suspected at the time, and am now certain, I had better things to do.

Still, against my better judgment, in light of your oft-demonstrated capacity for thoughtfulness, I am compelled to respond to several specific points on which you chose to insult me.

I don't think that an argument to the effect that "people think X now, ergo X is true" is a valid argument.


Agreed. Fortunately for us both, I said no such thing. I said Bush is likely to be "treated very kindly by history," and further suggested that, " If there is genuine and sustained progress in the Middle East over the next 30 years, Bush will get the credit that Reagan is now given for winning the Cold War." You are deeply invested in the differences between academic history and popular notions of history. Fair enough. I trust you'll notice I did not address that matter at all. A more accurate and fair restatement of my point, using your formulation above, would be, "people think X now, so people will probably think Y in the future." Finally, I think you're wrong to assume the existence of an academic consensus regarding Reagan's contribution to the collapse of the Soviet Union, and anyway, you're the one who supposedly rejects (situationally, it seems) appeals to authority. If scientists can be wrong about science, and lawyers can be wrong about law, then historians can be wrong about history, no?

I don't think that an argument to the effect that "Bush has a mandate, if we lower our standards for what constitutes a mandate because very few Presidents actually have one" constitutes a valid argument. A mandate generally means that a sizeable majority of the people support an elected official's policies or person.


You must have known this was unfair when you wrote it. You define the word "mandate" on your own terms, then beat me about the head and shoulders for failing to anticipate your definition and tailor my remarks accordingly. If we define president's "mandate" differently, say, as a record of electoral success that compares favorably to that of virtually all other presidents throughout American history, then my point remains. By citing electoral results dating back to 1872, I could hardly have been more clear.

Legislatures were doing the job DeLay demands of them. It's just that the jobs he wants done are, well, not fucking Constitutionally permitted.


I am not sure what you mean here, so for the purpose of this response I will assume by "jobs" you refer to the following recommendations cited by Scott:

The organizers of the conference and Congressional staff members who spoke there called for several specific steps: impeaching judges deemed to have ignored the will of Congress or to have followed foreign laws; passing bills to remove court jurisdiction from certain social issues or the place of God in public life; changing Senate rules that allow the Democratic minority to filibuster Mr. Bush's appeals court nominees; and using Congress's authority over court budgets to punish judges whom it considers to have overstepped their authority.


It turns out that all of these jobs are, indeed, "fucking Constitutionally permitted." Impeaching judges is obviously permitted. Changing Senate rules is obviously permitted. Using Congress' authority over budgets is obviously permitted. The jurisdiction-stripping statutes tend to get people riled up, but it turns out those are permitted as well. Article III, Section 2 of the Constitution provides that, "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

There's a reasonable debate to be had regarding whether these actions are prudent or wise. On that score, I suspect you and I agree. I indicated as much in my post when I said, "I'm leery of jurisdiction-stripping statutes."

Constitutional amendment is not a power strictly of the Legislative branch of the Federal government -- but you knew that.


Yes, I did. I merely stated that Constitutional amendments are products of the "will of the people."

Finally, the POINT of the judiciary is that it's "nondemocratic" -- or rather, that it resists the contingent, transitory and changing will of the demos, the people, in favor of maintaining the Constitutional standards that underpin a functional American democracy.


Sure. That's pretty much exactly what I meant when I said, "If Congress were to pass a law impermissibly infringing on that right, the judicial branch exists to strike down that law - even if majority of people support it. This is to prevent what is commonly called 'tyrrany of the majority.'" So we agree about that.

My point, however, was that between the legislative and judicial branches, the legislative branch is superior because it is more democratic. I'm not just making this up. James Madison discussed it at length in the Federalist Papers. The legislative branch is the only branch with the authority to tax. The legislative branch acts, the judiciary reacts. Legislators write laws, courts decide whether they stand or are struck down. Acknowledging this reality is no knock on the judicial branch - it wields enormous power and I'm glad for that. However, because it is somewhat undemocratic (and as you noted, that's the point) the founders carefully and clearly made it subordinate to the legislature.

You touch on a number of fascinating issues, especially the direct election of senators (which I don't think is a good idea). I think you have a lot of good ideas, and I always appreciate your adept use of language. I have never and will never ask you to accept anything I say just because I say it. All I ask is that you try harder to meet my points head-on, in good faith, without assuming at the outset that I am ignorant, or a dolt.

I think I deserve it. I think everyone does.

Kris Weberg | April 14, 2005
More than a fair response. My comments, certainly in tone and likely in content, were outta line.

Steve Dunn | April 14, 2005
Well, some of mine were, too. I came here this morning to edit my post and tone it down, but hey, too late. Oh well. The main thing I want to be sure we're clear on is that I put a lot of energy into responding to you because I think it's worth it.

Peace.

Kris Weberg | April 14, 2005
It does seem, though, that the language of the Constitution would authorize Congress to eliminate judicial review in nearly any matter. Of course, the net result there would be that laws contravening the Constitution could be passed, so long as Congress didn't infringe on state legislatures.

I wouldn't want that, though; and thankfully, I'm not a believer in "original intent" for a variety of reasons, among them the sometimes bitter divisions between men like Jefferson, Adams, Madison, and Hamilton, and because of a variety of problems that have been uncovered relating to the actual mechanics of Constitution ratification voting in many states. The systematic disenfranchisement of rural voters that went on in New England makes the Florida 2000 charges seem like kids' stuff.

Ironically, of course, the opposite of Madison's apparent intent has happened in many respects. The power of judicial review is applied to matters that Congress could control, while Congress has arguably infringed on the power of the states by invocation of the Commerce Clause in a variety of increasingly novel contexts. Congress may well have given up a power over the courts, but it's taken on powers over the states. And I actually don't mind that, either, considering the ludicrously provincial thinking that takes place in many of the states (see Kansas on the teaching of evolution, the South, California, and New York in general). If states could pass the kinds of laws they were probably intended to, it really would cause massive complications for the sorts of national and international businesses that the Founders simply could not have foreseen in a rather different economic climate -- there really were no international corporations, for example, let alone an Internet or a Hollywood.

So I still think that DeLay is on the wrong side of this one. The understanding that Congresspeople, the courts, and the majority of the American people have of the way things work amounts to a democratic consensus -- if Congress were to start making the moves DeLay suggests, I've a feeling you'd see Congress's power abridged in fact if not in Constitutional law. It's a realm where de facto and de juris don't mesh.

But then, I see this as an increasingly post-national world in terms of de facto life, wherein international economic trends tend to affect most people far more directly, and increasingly tend to affect law within nations, far more extensively and subtly than anything a legislature or a court can do. I don't think the WTO or Halliburton are conspiracies, mind you, just that the moves they make tend to have greater repercussions than even civil rights legislation. Why? Because the rights guaranteed by the Constitution have only relatively limited effects for corporations, and virtually no effect on wages. And due to campaign finance law and the juridical standard of the corporation as a legal entity, legislation is influenced by more than the votes of constituents. Look at that rather unpopular bankruptcy bill that just passed for evidence.

For that matter, look at the sorts of things we argue about here. Gay rights affect a relatively small proportion of the population. Pharmacists who refuse to fill orders for contraceptives are so rare that they make the news. And people in Terri Schiavo's situation are not so common as you'd think either.

Economics, not law, runs most people's lives. And while those two concepts are not easily seperable, most people have meaningful power over one but not the other.

Scott Hardie | April 15, 2005
This reminds me of the semi-serious question of whether God can make a stone so heavy that he himself could not lift it, or, if you prefer the jokey version, whether God could make a burrito so hot that he himself could not eat it. Our version is: Could Congress write a law stripping the Supreme Court of so much authority that they themselves could not declare it unconstitutional?

Steve Dunn | April 15, 2005
I post to note that I can't continue the conversation for a few days at least. Not because I'm uninterested, but because I am out of town.

Steve Dunn | April 21, 2005
Not that it matters, but even I'm fed up with Tom DeLay.

(link)

Kris Weberg | April 21, 2005
The problem with DeLay isn't that he's done unethical things -- as Scott said, plenty of Congresspeople have done that. It's not necessarily his opinion on the role of the judiciary, though I think he's a bit overboard there myself.

It's that, when caught out, his response is to go absurdly aggressive, to launch ad hominem attacks, and to derail the business of the country for the sake of his own reputation and vendettas.

Amy Austin | April 21, 2005
AMEN... "But MOOOMMMM, he's doing it -- why can't IIIII?"

Jackie Mason | April 21, 2005
[hidden by request]

Kris Weberg | April 21, 2005
More to the point, we tend to think that innocent people have nothing to hide -- as such, innocent people don't accuse the law of "railroading" them, and (in the most disturbing form of this bias) innocent people don't get arrested or investigated to start with.

That said, it seems fairly clear from the FACTS leaked to the public that DeLay was doing something wrong.

Steve Dunn | April 22, 2005

It's that, when caught out, his response is to go absurdly aggressive, to launch ad hominem attacks, and to derail the business of the country for the sake of his own reputation and vendettas.


This was one of my main problems with Bill Clinton.

Kris Weberg | April 22, 2005
Actually, I'm no fan of Clinton either for some of the same reasons -- he put his political self-preservation ahead of anything else.

Actually, if you look at the behavior, DeLay and Clinton could be accused of many of the very same things.
Both used federal law enforcement agencies for domestic political purposes: DeLay sent Homeland Security after Democrats who refused to participate in a questionable redistricting plan; Clinton and "Filegate."

And both accepted contributions for shady quid-pro-quo returns...like every other politician. But DeLay and Clinton managed to do so in an exceptionally vulgar fashion.

Of course, I also supsect that my dislike of Clinton differs from yours in another respect -- I dn't think he was far enough to the left.


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