A big whine about what judges really do.
[I]f motivated reasoning drives judges and justices to place their partisan views above the law, at least in highly politically charged cases, then the case for giving these judges the power to decide these cases breaks down.
The Constitution empowers the judiciary because we trust judges to do something more than vote their political preferences.
If they are unable to set aside their partisan preferences whenever the subject of Obamacare comes up, then we are better off leaving those decisions to people who are actually accountable to the electorate.
If this is directed at the right it is mammoth hypocrisy from the party of the Warren Court.
If it is sincere Millhiser is a child just discovering Santa Claus doesn't really exist.
And the next time some equal protection baloney comes up having to do with race or gays he'll be sounding like a good liberal, again.
Some portions of his article that provoke a question.
“[W]here Congress has the authority to enact a regulation of interstate commerce,” Scalia wrote in 2005, “it possesses every power needed to make that regulation effective.”
. . . . .
In the early Twentieth Century, conservative justices embraced various legal doctrines that held many progressive laws seeking to improve labor conditions unconstitutional.
Mostly that was all about state laws and substantive due process, q.v.
Liberals responded to these extra-constitutional legal doctrines by arguing that the courts should get out of the business of censoring economic legislation — and they won.
As regards both state and federal legislative power.
In 1938, the Supreme Court held that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” unless it is unsupported by any “rational basis within the knowledge and experience of the legislators.”
It is on this basis that the authority of congress to ban marijuana or any other drug, altogether, is conceded.
And whence else the authority of the FDA over food or to control the commerce in and use of medicines?
Whence the authority for the whole regime of drugs only by prescription and only after federally controlled testing?
If those views of the constitutionality, not the desirability, of the congressional power to "regulate commerce" are right, why couldn't the Congress of 1860, or any earlier Congress after 1808, simply ban slavery?
Congress right now bans ownership of a wide variety of kinds of animals and constitutionally could, if it doesn't, demand liberation in the wild.
Or rather, such seems to be the conventional view.
But if that view is right, since nothing in the Civil War amendments has any hint of bearing on the extent of the congressional power to regulate commerce, then . . . . ?
In so many ways it is so obvious we have a national government, now, supplemented but only vestigially limited by the power of the states.
A government not as thoroughly national as Hamilton wanted, but definitely not the much looser federation created by the constitution of Philadelphia, a document not significantly modified in that regard by the Civil War amendments that did not give congress or anyone else the power to ban slavery or anything else, but merely banned it outright.
And the following is a distinction without a difference, isn't it?
The standard defense offered when judges divide along partisan lines is that they are voting their “judicial philosophies” rather than voting their politics.
Republican Justice Antonin Scalia offered this defense of himself and his colleagues in an interview shortly after his Court upheld the bulk of the Affordable Care Act.
“I don’t think any of my colleagues, on any cases, vote the way they do for political reasons,” Scalia claimed.
Rather, “[t]hey vote the way they do because they have their — their own — their own judicial philosophy. And they may have been selected by the Democrats because they have . . . that particular philosophy or they may have been selected by the Republicans because they have that particular judicial philosophy.”
Randy Barnett, a libertarian law professor and one of the lawyers who unsuccessfully challenged Obamacare before the Supreme Court, made a similar argument on Twitter in response to the Washington Times analysis of health care decisions.
Do many people really want the Supremes and their inferior courts to modify the constitution on their own, quite at will?
I don't recall who, but a liberal writer of the "Living Constitution" school did say approvingly, once upon a time, that the Supreme Court is in substance a constitutional convention in permanent session; and many echoed him, that claim being liberal conventional wisdom, for a time.
If so, the constitution itself does not make it so by express or implied grant of power, nor even charge the Supremes with policing the constitutionality of state or federal acts of any kind.
And most people, in principle, don't want it so; it's a little too undemocratic.
But in practice it's about whose ox gets gored, as when every liberal in the country yelled that our rights don't depend on majority votes, a propaganda line urged in support of courts lying that bans on homosexuality or gay marriage were unconstitutional.
On the other hand, does any sane person want the pre-Civil War, pre-New Deal government back?
They know not what they ask for, they who ask for that.
It is nearly impossible to believe that more than a few complete crackpots among them really understand what that would mean.
A Gendankenexperiment.
What if the constitution, in addition to Article V, had expressly authorized the Supremes to modify the constitution, in the expectation they would do so sparingly and only if pressed, when the Article V process seemed not to avail.
Before the Civil War that would have put slavery at risk, and there is no way it could have been accepted.
And now, after the Civil War, the clash with the exaggerated and mostly hypocritical national ideology of democracy would not allow us to accept an amendment explicitly authorizing such power.
But those men of the 18th Century might have bought it, had it not been for slavery.
Even today, some conservatives publicly not much enamored of democracy, anyway, might accept it, privately and in principle, though publicly they could not since the actual exercise of that power has since the start of the 20th Century run so strongly against their agenda in so many ways.
Interesting thought.
After all, we have a republic, not a democracy.
And have we not accepted that de facto the Supremes have such power, provided they exercise it through lies and proceed with some restraint?
If it is sincere Millhiser is a child just discovering Santa Claus doesn't really exist.
And the next time some equal protection baloney comes up having to do with race or gays he'll be sounding like a good liberal, again.
Some portions of his article that provoke a question.
“[W]here Congress has the authority to enact a regulation of interstate commerce,” Scalia wrote in 2005, “it possesses every power needed to make that regulation effective.”
. . . . .
In the early Twentieth Century, conservative justices embraced various legal doctrines that held many progressive laws seeking to improve labor conditions unconstitutional.
Mostly that was all about state laws and substantive due process, q.v.
Liberals responded to these extra-constitutional legal doctrines by arguing that the courts should get out of the business of censoring economic legislation — and they won.
As regards both state and federal legislative power.
In 1938, the Supreme Court held that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” unless it is unsupported by any “rational basis within the knowledge and experience of the legislators.”
It is on this basis that the authority of congress to ban marijuana or any other drug, altogether, is conceded.
And whence else the authority of the FDA over food or to control the commerce in and use of medicines?
Whence the authority for the whole regime of drugs only by prescription and only after federally controlled testing?
If those views of the constitutionality, not the desirability, of the congressional power to "regulate commerce" are right, why couldn't the Congress of 1860, or any earlier Congress after 1808, simply ban slavery?
Congress right now bans ownership of a wide variety of kinds of animals and constitutionally could, if it doesn't, demand liberation in the wild.
Or rather, such seems to be the conventional view.
But if that view is right, since nothing in the Civil War amendments has any hint of bearing on the extent of the congressional power to regulate commerce, then . . . . ?
In so many ways it is so obvious we have a national government, now, supplemented but only vestigially limited by the power of the states.
A government not as thoroughly national as Hamilton wanted, but definitely not the much looser federation created by the constitution of Philadelphia, a document not significantly modified in that regard by the Civil War amendments that did not give congress or anyone else the power to ban slavery or anything else, but merely banned it outright.
And the following is a distinction without a difference, isn't it?
The standard defense offered when judges divide along partisan lines is that they are voting their “judicial philosophies” rather than voting their politics.
Republican Justice Antonin Scalia offered this defense of himself and his colleagues in an interview shortly after his Court upheld the bulk of the Affordable Care Act.
“I don’t think any of my colleagues, on any cases, vote the way they do for political reasons,” Scalia claimed.
Rather, “[t]hey vote the way they do because they have their — their own — their own judicial philosophy. And they may have been selected by the Democrats because they have . . . that particular philosophy or they may have been selected by the Republicans because they have that particular judicial philosophy.”
Randy Barnett, a libertarian law professor and one of the lawyers who unsuccessfully challenged Obamacare before the Supreme Court, made a similar argument on Twitter in response to the Washington Times analysis of health care decisions.
Do many people really want the Supremes and their inferior courts to modify the constitution on their own, quite at will?
I don't recall who, but a liberal writer of the "Living Constitution" school did say approvingly, once upon a time, that the Supreme Court is in substance a constitutional convention in permanent session; and many echoed him, that claim being liberal conventional wisdom, for a time.
If so, the constitution itself does not make it so by express or implied grant of power, nor even charge the Supremes with policing the constitutionality of state or federal acts of any kind.
And most people, in principle, don't want it so; it's a little too undemocratic.
But in practice it's about whose ox gets gored, as when every liberal in the country yelled that our rights don't depend on majority votes, a propaganda line urged in support of courts lying that bans on homosexuality or gay marriage were unconstitutional.
On the other hand, does any sane person want the pre-Civil War, pre-New Deal government back?
They know not what they ask for, they who ask for that.
It is nearly impossible to believe that more than a few complete crackpots among them really understand what that would mean.
A Gendankenexperiment.
What if the constitution, in addition to Article V, had expressly authorized the Supremes to modify the constitution, in the expectation they would do so sparingly and only if pressed, when the Article V process seemed not to avail.
Before the Civil War that would have put slavery at risk, and there is no way it could have been accepted.
And now, after the Civil War, the clash with the exaggerated and mostly hypocritical national ideology of democracy would not allow us to accept an amendment explicitly authorizing such power.
But those men of the 18th Century might have bought it, had it not been for slavery.
Even today, some conservatives publicly not much enamored of democracy, anyway, might accept it, privately and in principle, though publicly they could not since the actual exercise of that power has since the start of the 20th Century run so strongly against their agenda in so many ways.
Interesting thought.
After all, we have a republic, not a democracy.
And have we not accepted that de facto the Supremes have such power, provided they exercise it through lies and proceed with some restraint?
Update.
In the face of liberal enormities one might ask what would be acting without restraint.
Abolishing the Senate, perhaps, or replacing the states with prefectures.
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