Wednesday, November 29, 2017
Stephen A. Douglas's all-important question about judicial legitimacy
Fun with typos.
Douglas' riposte is too cute. His party, the Jeffersonian Democrats, supported a certain type of judicial nominee. It was generally assumed they would support certain things. Would it have been deemed unprincipled for Jefferson to determine his judicial picks showed some determination that the Alien-Sedition Acts were unconstituitonal?
Anyway, this is not merely some sort of single issue litmus test thing. Lincoln would be likely to appoint a certain sort of judge that as a general matter having legal sympathies akin to the dissenters (and on one or more points maybe even one or more concurrences -- e.g., on broad power over territories generally). Douglas as President would pick those more sympathetic to his stance.
Law that is more on the flux is more likely to be affected by such things as seen by support for Trump regarding current 2A doctrine in certain direction. More established law is harder to change [to cite the previous thread, Stuart v. Laird accepted a mere decade as an assumed settled question. But, there, Dred Scott was brand new and just how deep it was (or if it deserved to stand at all) was still more of an open question.
[As an aside, yes, the Constitution compromised with the evil of slavery, but part of the compromise as Lincoln well discussed at Cooper Union was to give Congress much discretion to regulate it, at least in certain ways. Long practice surely showed this in regard to the territories. Dred Scott might reasonably have lost but at best on narrow grounds.]
Thanks to Joe for catching the "autocorrect." I have corrected the spelling of Gorsuch's name! (Though I note that the autocorrect wanted to change it to "grouch" again.)
On the substantive point, I think it is open to genuine question how much discretion Congress was supposed to have over the territories. One problem, of course, is that in 1787, the only territories really on the Framers' minds were the "Northwest" and "Southwest" territories where it had been tacitly accepted that the first would be free and the latter slave, thus preserving the balance of power in the Senate (and, it was thought, the House.) The Midwest Purchase of 1803 (Bill Freehling's valuable corrective to the more limited "Louisiana Purchase") changed everything in this regard. It turned out that patterns of settlement very much favored the North instead of the South. As Graber argues, the essence of the Republican program was to reject the "bisectionally" implicit in the original set of compromises and to substitute relatively unfettered majoritarianism. Given my own critiques of the Constitution, that's fine with me, but it should be recognized as a genuine transformation of the Constitution rather than the simple working out of its immanent commitments.
I think the dispute largely amounted to a political question. An important matter & shows who wins elections matters a lot. And, yes, changes on the ground affected that.
I am aware of certain defenses of the ruling & am not really convinced by them. But, there surely can be various shades of gray. As to SL's own thoughts, see, e.g.:
I don't want to get too far afield from the main topic of the post, but it always seemed to me that the power of Congress to regulate slavery in the Territories was one of those issues that, in the words of Stuart v Laird, was settled by practice. Not just the Missouri Compromise, but other acts as well. I therefore can't have much sympathy with the slaveholder claim that the Compromise violated some (non-textual) bargain. I'm not a fan of non-textual bargains anyway.
Prof. Calabresi's argument struck me as quite weak and highly partisan. Clearly, Congress has the power to expand the judiciary (though the exact number of votes needed in the Senate might be controversial). The main thing his arguments proved to me was that there are no reasonable Republicans any more (I'm referring to those holding office or in support roles like the FS). It's Constitutional hardball all the way. There are, in that case, only a few options:
1. Hope that the current iteration of the Republican Party dies out.
2. Have the Democrats play hardball in return.
3. Split into separate nations.
4. Allow permanent rule by a conservative oligarchy over the majority of Americans.
The reason this gets so confused is that ideology politics—which are historically odd and empirically uncommon among actual humans—are treated as normal and, frequently, *normative*.
The Founders obviously foresaw factions based on interests. They funded a press filled with appeals to identity.
What they could not foresee, in part because it is so unbelievably stupid, is the way that the October Revolution would turn Hegelian fantasy into the pose adopted by all the cool intellectuals, who would then inspire a similarly fantastic backlash into the pose adopted by all the smarmy juveniles of the modern leisure class.
I don't think we're so much drifting as hurtling towards civil war. The chief driver of this being the declining ability to accept the legitimacy of the other side winning elections, and the relentless drive to decide everything at the highest possible level.
A good dose of subsidiarity would help calm things down. But the legitimacy of subsidiarity as a principle is one of the things we disagree about, isn't it?
Unfortunately, I see little prospect of this being resolved by secession. Chiefly because the dividing line isn't between states, or one side of the country vs the other. The actual dividing line is between urban centers and everywhere else.
How can the gravel secede from the cement?
Then again, as I reflect on history, the revolutionary war was followed by a period of years during which Tories moved to Canada. I suppose a US secessionary split would cause the same thing.
But, no, you still have that fundamental divide between urban centers and the rest of the nation, and it IS fundamental. So, no, I don't see it working, unless the remaining US went with massive changes to discourage urbanization.
One of the smarter things the Democratic party has done over the last few decades is to, knowing that they dominate cities, pursue policies to drive the population out of rural areas and into the cities, and push urban areas towards the higher population densities where they rule. This could be reversed, I suppose, but it would be the work of generations.
Really, subsidiarity is the only answer.
Sandy: I have, several times, used this as the basis for final exam questions. I.e., to what extent is it true that “We the People” will (or should) accept judicial authority if and only if we see the judiciary as something else than the arm of our political opponents?
If only my Con Law professors posed this question on an exam...
In any case, the only way to accomplish legitimacy is for the judiciary to strictly adhere to the original meaning of the written law. To the extent she diverges from the written law, a jurist is by definition writing her own policy preferences into the law and thus engaging in politics. No such opinion is legitimate and should not be granted precedential value.
Calabresi's error is to argue nominations should be based the partisan affiliation of the POTUS rather than an ability to follow the law as written. A libertarian should know better. That being said, I suspect Calbresi noted Trump's exemplary judicial appointments to date and then assumed Trump appointments are far more likely to follow the written law than are Obama appointments. Even acknowledging the "evolution" of various GOP POTUS nominees into judicial legislators once given a lifetime tenure to the Supreme Court (see Souter, Kennedy and now Roberts), this is a very reasonable assumption.
Yet most of us do seem to adhere to a view that judicial opinions, to be genuinely binding, must be something more than "mere" politics.
Because no one here, apart from maybe Brett and I, believe in original meaning jurisprudence, this observation is incorrect.
"The chief driver of this being the declining ability to accept the legitimacy of the other side winning elections"
This is to be expected when those elections are decided in non-majoritarian ways. What's interesting to me is when, as happened with Obama in 2008, one side realizes they were honestly beaten electorally and in the popular vote, but still wants to illegitimize the other side (the whole 'birther' nonsense).
"One of the smarter things the Democratic party has done over the last few decades is to, knowing that they dominate cities, pursue policies to drive the population out of rural areas and into the cities"
OK, I'm genuinely curious. What has the Democratic party done to make more young, liberal minded people done to move away from rural areas and to cities? I would have thought these were due to social and economic changes unrelated to party policy (such as those described by Richard Florida's work).
"subsidiarity is the only answer."
Like 'state's rights' conservatives are not serious about subsdiarity at all, as one can see from their recent movements to exercise state power over localities that do things like pass anti-discrimination protections for gays, take down Confederate monuments, etc
"To the extent she diverges from the written law, a jurist is by definition writing her own policy preferences into the law and thus engaging in politics."
As I said in the other thread, this is unhelpful question begging since the real hotbeds of controversy is *how* one should understand and apply the law as written.
Those who talk of civil war, secession, should keep in mind national security, economics, finance, etc, and consider how competing world powers might respond to such actions. The interdependency within America and internationally would be impacted. Financial markets might crater. The 1%ers and especially the 0.1% would do what to protect their assets? Would libertarians revert to anarcho libertarianism? Let's all take a deep breath.
And let me remind all once again that the Constitution does not provide for judicial supremacy over the Executive and Legislative Branches.
"And let me remind all once again that the Constitution does not provide for judicial supremacy over the Executive and Legislative Branches."
Yes, you've said that before. Of course, it's the Constitution itself that's supreme, not the judiciary's gloss on it.
But, why are you bringing this up? Suggesting that the next Democratic President might just ignore Supreme court rulings she doesn't like, as a response to Trump Justices?
"Of course, it's the Constitution itself that's supreme, not the judiciary's gloss on it."
Constitutional law isn't just out there in the ether. It is actually worked out by actual people and institutions. The courts in our system have a role here, one that over time, other nations (in different ways) found convincing.
The courts' gloss matters and everything isn't just re-litigated all the time etc. There is stare decisis and the like. It's a sensible way to apply the Constitution and for those who care well expected and understood by those there at the time. The Bill of Rights specifically was in place in part because of the anti-majoritarian nature of the courts enforcing it. See, Jefferson/Madison and others.
As to driving things to another level, the person Brett support helped there, and find it not ideal really. I suggested, e.g., Trump would have been wily to support Garland with the priviso he get something in return like Kennedy's replacement. I think a few Democrats in the Senate would have gone along. Getting them all to vote against Gorsuch even as it went wasn't that easy. Brett ridiculed the ideal, aiming to support what the base of the party wanted. That is, driving things to another level, instead of having Trump govern to appeal to the whole electorate, which some of his rhetoric at times (when it suited) said.
Brett, it is said there are three equal branches of government under the Constitution. Those in the Executive and Legislative Branches take oaths regarding the Constitution as do members of the Judiciary. Sometimes there are differences, often perhaps minor. There is a matter of legitimacy of a decision of the Court. At times there have been serious tensions. Marbury v. Madison could have created a serious tension but CJ Marshall found a way to resolve the issue in a round about way after much dicta. President Jackson had an issue. And recall the Court with Watergate - close.
But, Brett, you are so sensitive with your closing question perhaps with your obscene lockstep with Trump. Perhaps your hair-trigger mind did not calculate that Republican President Trump might ignore a Court ruling he might not like what with all the investigations underway.
And in that comment of mine I should have included this from an earlier comment by you:
"I don't think we're so much drifting as hurtling towards civil war."
That was idiotic. Speaking of your hair-trigger mind are you getting your arsenal ready?
" Trump would have been wily to support Garland with the priviso he get something in return like Kennedy's replacement. "
No, he'd have been remarkably stupid to do that. Remember when Bush tried a similar trade?
Yeah, the Democrats reneged. They confirmed the Clinton nominee, and then resumed blocking Bush's nominees.
Sandy's closing sentence:
"In any event, the Calabresi-Hirji argument is basically founded in Jacobin majoritarianism centered on presidential power, a position not often linked with the professed views of the Federalist Society that Calabresi helped to found and which proudly uses a portrait of James Madison in its logo."
raises this question: Did Madison become part of the logo prior to the publication of:
Madison’s Hand: Revising the Constitutional Convention by Mary Sarah Bilder?
Remember when Bush tried a similar trade?
Confirming a few Clinton holdovers when the Democrats took control of the Senate because an independent minded Republican went against Bush is not really a "similar" trade to the Supreme Court & the situation was different in various ways including Trump allegedly a wily out of the box free agent.
And, in the long run, most of the most controversial judges (including Brett Kavanaugh, now on Trump's short list) were confirmed in the "Gang of 14" compromise. As were many others, since the Democrats didn't actually just block people. They picked their spots. Bush showing his good faith in the long run helped the cause.
But, yes, for those who want to push the ideological envelope, to have Trump govern to favor a minority who support him, like yourself, it would be a stupid idea.
I want to push things as far in the direction of restoring constitutional government as is possible. I suspect that won't be too far, but every bit helps in pushing off that civil war Sandy is concerned about.
It's ironic that he'll hate every step back from the brink, because it has been things he liked that have brought us there.
"to have Trump govern to favor a minority who support him, like yourself, it would be a stupid idea."
joe, while they use rhetoric about 'returning government to the American people' the conservative political model know is totally fine with minority rules, in fact they count on it. They've got an entire philosophy built on the idea that the votes of people who, say, can't jump through bureaucratic hoops in order to vote or people who make the decision in life to live in urban areas near many other like minded folks can be easily dismissed. Actually appealing to, and winning over, a majority of voters is passe for many conservatives.
The Democrat establishment primarily resides in Blue megalopolises, advances the values of those cities over national values and, most importantly for this discussion, denigrate and dismiss those who live elsewhere in the suburbs and rural areas.
The electoral math problem with this approach is that the suburban and rural voters whom the Democrat establishment denigrate and dismiss outnumber urban voters.
It has come to the point where a majority of Alabama voters appear ready to elect someone the Democrat establishment media alleges is a child molester over an establishment Democrat.
Brett's 11:32 AM comment opens with this:
"I want to push things as far in the direction of restoring constitutional government as is possible. I suspect that won't be too far, but every bit helps in pushing off that civil war Sandy is concerned about."
Then Brett closes his comment with this:
"It's ironic that he'll [Sandy] hate every step back from the brink, because it has been things he [Sandy] liked that have brought us there."
Brett is trying to weasel off the hook for his earlier comment that included this:
"I don't think we're so much drifting as hurtling towards civil war."
Sandy's post closed with this:
"My own view is that the American government, more and more, is at least as illegitimate as was the British government castigated by the revolutionaries (or, more accurately, secessionisits) of 1776. I am at the apocalyptic end of the spectrum inasmuch as I do believe that we have drifted into a political-psychological state that often presages civil war. In my own case, I find secession and the breakup of the Union far more palatable. But that is the subject for other discussions and other postings."
Sandy used "drifted" whereas it was Brett who said "hurtling" towards civil war. Words have meaning, Brett. Don't weasel your comment. Sandy stated what he considers" more palatable" than civil war.
Thomas B. Edsall's sobering lengthy NYTimes column today titled "The Self-Destruction of American Democracy" looks at the problem beyond the judiciary.
Outnumber? Here's what 'outnumbers' what: the Democratic candidate for President's votes by 3 million over the Republican candidate's in 2016.
Heck, in the recent elections in Virginia the Democrats outperformed the GOP by 9% of all votes cast and yet the GOP won their legislature due to gerrymandering (as another testament to gerrymandering, in the same state the GOP hasn't won a statewide election in a decade yet a majority of the House seats are held by Republicans).
The GOP is a party whose wins come due to minoritarian measures, they are the party of minority rule.
"denigrate and dismiss those who live elsewhere"
Yes, we all remember when famed Democrat Sarah Palin dismissed those who did not live in 'real America,' or when Democratic senator and presidential nominee Ted Cruz made a snide comment about 'New York values.'
"It has come to the point where a majority of Alabama voters appear ready to elect someone the Democrat establishment media alleges is a child molester over an establishment Democrat."
The'party of personal responsibility' is about to elect a pedophile to the US Senate and somehow it's the fault of mean old urban Democrats for denigrating those good people!
A majority of the 2016 vote went to the three Republicans running for President and elected the GOP House.
The 2016 election is the second general election in a row where the Democrat lost a majority of the congressional districts.
Democrat self-segregation as an urban rump party and alienation of the rest of the nation does not constitute "gerrymandering." Indeed, the only way Democrats in the heartland can become competitive is to form gerrymanders extending out from blue urban centers into red suburban and rural areas.
VA is a purple to blue state because much of the DC bureaucracy has moved into its NE corner. In the last VA election, the Democrats won most, but not all, of the districts in which they have electoral majorities. They lost everywhere else in the state.
The AL special election basically sums up the Democrat situation in most of the United States - an establishment Democrat polls worse than an alleged child molester.
Are you getting a clue yet?
Perhaps the clue that SPAM attempts to provide to Mr. W might be revealed at malls in rural CO. Notice SPAM's attempt at spin in his penultimate paragraph at 10:11 PM:
"The AL special election basically sums up the Democrat situation in most of the United States - an establishment Democrat polls worse than an alleged child molester."
Here's a variation:
"The AL special election basically sums up the Republican situation in most of the United States - an establishment Republican who is an alleged child molester polls better than a Democrat who as a prosecutor had successfully challenged KKK killers of three little girls by means of a bombing of a Black church."
What does that say about the people of Alabama, or the Revengelicals (formerly known as Evangelicals) who continue to support Trump and Moore?
And SPAM's reference to "Democrat self-segregation as an urban rump party" is so colorful but SPAM ignores his own Republican self-segregation in rural CO - that why he left big law in FL to practice in rural police courts.
No clues are necessary to identify SPAM's libertarian coloring book.
By the Bybee [expletives deleted], those three girls that were killed were African-American. It took a long time bringing their killers to justice. Thank you, Democrat Doug Jones.
"A majority of the 2016 vote went to the three Republicans running for President and elected the GOP House."
Except two of them were not running as Republicans. The fact that someone was a Republican a decade or so ago says little about how they ran last year. The *actual Republican* received 3 million less votes than the actual Democrat. Additionally, in the same year 45.2 million Americans cast a vote for a Democratic Senate candidate, while 39.3 million Americans voted for a Republican, yet the GOP 'won' the Senate. Even in the House, where GOP candidates got more votes than Democratic candidates overall, the former got 49% of the total vote but 55% of the seats!
"Democrat self-segregation as an urban rump party and alienation of the rest of the nation does not constitute "gerrymandering.""
This is irrelevant nonsense. Our democracy is based on majority rules, the fact that a majority might like to live close together, 'bunched up' doesn't negate the principle that for our government's legitimacy the majority must rule. We are not a democracy of land and dirt, but of people.
Likewise, your observations about VA are irrelevant. Who cares why a majority of Virginians vote against your party, the fact is they do, and yet gerrymandering sheenanigans, which amount to affirmative action for Republicans, denies that majority rule.
"The AL special election basically sums up the Democrat situation in most of the United States - an establishment Democrat polls worse than an alleged child molester."
Alabama Republicans that consciously choose a pedophile to represent them have only themselves responsible for their choice. They've clearly stated their values in such a pick. The stain is not on who they didn't pick, but on themselves, as the GOP there defines itself as the Grand Old Pedophile party...The clue is yours to get.
And SPAM's reference to the AL special election failed to disclose popular vote losing President Trump's 2016 EC election came about after 16 women accused Trump of inappropriate sexual advances which served as exclamation points on Trump's Hollywood Access tape comments which made him America's first PG [no, not TV ratings] president. What did that say about Trump's base?
Shag: Here's a variation: "The AL special election basically sums up the Republican situation in most of the United States - an establishment Republican who is an alleged child molester polls better than a Democrat who as a prosecutor had successfully challenged KKK killers of three little girls by means of a bombing of a Black church." What does that say about the people of Alabama, or the Revengelicals (formerly known as Evangelicals) who continue to support Trump and Moore?
PERFECT example of how the Democrat establishment denigrates and dismisses Americans outside the Blue megalopolises.
BD: "A majority of the 2016 vote went to the three Republicans running for President and elected the GOP House."
Mr. W: Except two of them were not running as Republicans.
Why does that matter? Lifetime Republicans were running for president as an alternative to the nominated Republican and split the GOP vote.
In 1912, Teddy Roosevelt ran under the Bull Moose ticket against his own handpicked GOP successor and split the GOP vote. The difference between 1912 and 2016 is the Democrat was so unpopular in the majority of states which contain a supermajority of electoral votes that she lost to the Republican even after the GOP vote split three ways.
BD: "Democrat self-segregation as an urban rump party and alienation of the rest of the nation does not constitute "gerrymandering.""
Mr W: This is irrelevant nonsense. Our democracy is based on majority rules...
No part of the federal government is based on general majority rule. We have a geographically based system to ensure all parts of the country are represented.
Gerrymanders are irregular shaped districts which break up communities of interest in order to maximize the votes of a political party.
The GOP does not require gerrymanders because the combination of Democrat urban self-segregation and Democrat alienation of the rest of the country has minimized the effect of Democrat votes.
Remember that the voters have elected a GOP House in every cycle but two since 1994. These elections were often under formerly blue state districting and the two losing cycles required an apparently losing war and a major recession.
"how the Democrat establishment denigrates and dismisses Americans outside the Blue megalopolises."
This is a crazy relativism among the Right these days. Again, the problem is not that Alabama Republicans are 1. either OK with pedophilia or 2. are acting like two year olds and are voting for a pedophile to spite urbanites who criticize them, it's people who are pointing out that such behavior is morally atrocious. Again, this is the party of 'personal responsibility?' LOL
"No part of the federal government is based on general majority rule. "
Actually, the philosophical basis of our federal government, as set out in our Declaration of Independence, hinges that government's very legitimacy on it.
"Gerrymanders are irregular shaped districts which break up communities of interest in order to maximize the votes of a political party. "
Again, Bart and many conservatives place no value on the People, because they are endebted to and OK with minority rule. Therefore, they fixate on geography and shapes. Therefore Bart thinks the essence, and what is wrong, with a gerrymander has to do with the shape of a district, and not with whether it creates a situation of minority rule. Because, he doesn't care if a majority rules or not.
They weren't lifetime Republicans because they weren't at that time, and that was during their life. People leave parties all the time, often in disagreement with where that party has gone or is going.
BD: "how the Democrat establishment denigrates and dismisses Americans outside the Blue megalopolises."
Mr. W: This is a crazy relativism among the Right these days. Again, the problem is not that Alabama Republicans are 1. either OK with pedophilia or 2. are acting like two year olds and are voting for a pedophile to spite urbanites who criticize them, it's people who are pointing out that such behavior is morally atrocious.
Under your morally atrocious reasoning, if I accuse you of necrophelia, then your employer supports necrophelia if you remain employed.
The Democrat establishment including their media constantly employ this type of slander against the majority of Americans and then wonder why those Americans do not reward the defaming political party with their votes.
Pitiful analogy. A better one, if nineteen witnesses come forward and accuse you of necrophilia, and when you were asked about it you said 'well, I always got permission from the parents of any body I had relations with, living or otherwise', and then your boss continues to employ you to work with dead bodies, then, yes, something is wrong with your boss.
Also, you're doing a goal post shift. Your first comments weren't contesting the claims about Moore, they were arguing that it somehow reflected on Democrat and urbanites that rural Alabama Republicans were going to vote for a pedophile. Talk about a morally atrocious piece of relativistic nonsense! Rural conservative Alabamans have total moral agency over who they vote for, to the extent they use that vote for a pedophile that is totally on them, not any 'denigration' they may be sensitive about.
SPAM ignores the two times Judge Moore was removed from his role as elected Chief Justice to the AL Supreme Court. These came about by actions of the Judicial Commission of the State of Alabama. These took place long after his mall trolling days looking for teenagers. And also there was the matter of his $1 Million from his foundation that had long not been disclosed in required federal filings for his foundation. Democrats did not defame Moore. Moore defamed himself. Perhaps SPAM's support of Moore is part of the libertarian mantra: Selfishness uber selflessness. In the past, Alabama voters (especially the Revengelicals) accommodated Moore, a man who defamed himself. SPAM is in lockstep with Trump (a fascist according to SPAM) in support of Moore. It's obvious why Trump is supporting Moore (Access Hollywood tape and subsequent 16 sexual accusations by women of Trump) but why SPAM? Is it a rural libertarian thing?
"SPAM ignores the two times Judge Moore was removed from his role as elected Chief Justice to the AL Supreme Court. These came about by actions of the Judicial Commission of the State of Alabama."
They came about because Moore willfully defied the law both times. Remember when Brett and Bart used to complain about Obama's 'willful defiance' of the law?
Therefore Bart thinks the essence, and what is wrong, with a gerrymander has to do with the shape of a district, and not with whether it creates a situation of minority rule.
The actual definition of gerrymander (Oxford) is "manipulate the boundaries of (an electoral constituency) so as to favor one party or class." The key is party advantage, not district shape.
Mr. W: Pitiful analogy. A better one, if nineteen witnesses come forward and accuse you of necrophilia...
In the case of Roy Moore, two women accused Moore of having sexual contact with them while they were minors. The Nelson accusation brought forward by Gloria Allred has been substantially debunked by third parties. This leaves one 37 year old accusation with corroborating evidence Moore knew the complaining witness, but no corroboration of the alleged act.
Even if 1,000 people accuse someone of wrong doing, an employer does not necessarily support that wrongdoing by employing the person, most especially if the person has not even been afforded basic due process.
These witch hunts by accusation are worse than morally atrocious. They attack the very idea of America.
SPAM seems to be suggesting that rural libertarians trolling malls for teenagers need not worry.
By the Bybee [expletives deleted], Moore was provided "basic due process" by the AL Judicial Commission.
Anyone can peruse the evidence against Moore here:
On much, much less evidence than that Bart, Brett and other conspiracy theorists have held all kinds of views about the horrors of various Democrats.
Mr. W:Post a Comment
The Slate article is a typical Democrat media hit job which leaves out half of the known evidence.
I reserve judgment about the long line of progressive Democrats in and out of government accused of sexual misconduct. That is between them and their accusers and employers.
I certainly am not demanding Congress attempt to expel or take any punitive action against progressive Democrats based on mere accusations of sexual misconduct. At minimum, Congress should investigate the accusations, subpoena the accusers to appear and allow the accused to confront and cross examine them.