And so it begins...
The nomination of Samuel Alito to the Supreme Court is sure to provide plenty of examples of journalists supplying the UK with uninformed, warped, or otherwise confused and confusing analysis of both the nominee and the US judicial process in general. Today Tim Reid of The Times kicks it off with his article on the nomination.
Noting the case that is certain to be the cornerstone of Democratic opposition to Alito (as did the BBC yesterday), Reid attempts to explain Alito’s position in a Pennsylvania abortion notification case, part of the well known Planned Parenthood v Casey case that eventually made it to the Supreme Court in 1991. Reid says:
This distinction is highly important, and anyone who fails to grasp its importance will inevitably fail to understand the very essence of conservative jurisprudence (and will, hence, not do it justice when ostensibly informing other people about it.) Arguing that a law is permissible under the constitution does not mean that one agrees with the substance of the law under question. Whether or not it "should" be law is not the a decision that judges can legitimately make. That is what we have elected representatives for.
What a judge might personally consider to be appropriate law, in other words, is not always constitutional, while what a judge might personally consider to be inappropriate law is not always unconstitutional. Conservative jurists, unlike their liberal brethren, tend to recognize the fact that they do not exist to do the “right” thing, they exist to follow the constitution. In contrast liberal jurists embrace the ridiculous notion of a “living constitution", because it allows them to justify whatever decision will provide the “right” outcome, regardless of what the words in the constitution actually say and mean. Hence we get rulings based not on the words of the constitution, but rather on ridiculous things like "penumbras, formed by emanations" of the constitution.
There is a famous anecdote about the well known Supreme Court Justice, Oliver Wendell Holmes. After having lunch with the equally famous, and prophetically named, Judge Learned Hand, Hand is reported to have bid Holmes farewell by saying “Do justice, sir, do justice.” Holmes stopped, turned to Hand and said, “That is not my job. It is my job to apply the law.”
Keep this in mind the next time you read that Alito is “pro-life” or “anti-abortion” or “anti-gay marriage”. As far as his decisions go, we know nothing about whether he is any of these things. All we can possibly glean from those decisions is whether or not he is in favor of applying the words in the constitution as they are written, or whether he is favor of applying the constitution as he wishes it were written.
Reid’s mischaracterization of Alito’s ruling is a good reminder to be very wary about accepting at face value what is being reported in regards to Alito's positions.
BTW, one intersting aspect of the above quote from Reid is the portion in which he said that the Roe v Wade decision "gives a woman a constitutional right to abortion." This is more true, and revealing, than I suspect Reid knows. The thing is, constitutional rights are supposed to be granted by, well, the constitution, not 9 lawyers dressed in black robes.
Noting the case that is certain to be the cornerstone of Democratic opposition to Alito (as did the BBC yesterday), Reid attempts to explain Alito’s position in a Pennsylvania abortion notification case, part of the well known Planned Parenthood v Casey case that eventually made it to the Supreme Court in 1991. Reid says:
Although it is not clear if he would vote to overturn Roe v Wade, the landmark 1973 Supreme Court ruling that gives women a constitutional right to abortion, Mr Alito did argue in 1991 that a woman should notify her husband before she seeks an abortion, a stance rejected by the Supreme Court.This is quite wrong. Alito absolutely did not argue that a woman should notify her husband before she seeks an abortion. Such an issue was never before him as a judge. The issue before him was whether a state law which contained such a requirement was permissible under the constitution. He voted and argued that it was permissable, not that it should be law.
This distinction is highly important, and anyone who fails to grasp its importance will inevitably fail to understand the very essence of conservative jurisprudence (and will, hence, not do it justice when ostensibly informing other people about it.) Arguing that a law is permissible under the constitution does not mean that one agrees with the substance of the law under question. Whether or not it "should" be law is not the a decision that judges can legitimately make. That is what we have elected representatives for.
What a judge might personally consider to be appropriate law, in other words, is not always constitutional, while what a judge might personally consider to be inappropriate law is not always unconstitutional. Conservative jurists, unlike their liberal brethren, tend to recognize the fact that they do not exist to do the “right” thing, they exist to follow the constitution. In contrast liberal jurists embrace the ridiculous notion of a “living constitution", because it allows them to justify whatever decision will provide the “right” outcome, regardless of what the words in the constitution actually say and mean. Hence we get rulings based not on the words of the constitution, but rather on ridiculous things like "penumbras, formed by emanations" of the constitution.
There is a famous anecdote about the well known Supreme Court Justice, Oliver Wendell Holmes. After having lunch with the equally famous, and prophetically named, Judge Learned Hand, Hand is reported to have bid Holmes farewell by saying “Do justice, sir, do justice.” Holmes stopped, turned to Hand and said, “That is not my job. It is my job to apply the law.”
Keep this in mind the next time you read that Alito is “pro-life” or “anti-abortion” or “anti-gay marriage”. As far as his decisions go, we know nothing about whether he is any of these things. All we can possibly glean from those decisions is whether or not he is in favor of applying the words in the constitution as they are written, or whether he is favor of applying the constitution as he wishes it were written.
Reid’s mischaracterization of Alito’s ruling is a good reminder to be very wary about accepting at face value what is being reported in regards to Alito's positions.
BTW, one intersting aspect of the above quote from Reid is the portion in which he said that the Roe v Wade decision "gives a woman a constitutional right to abortion." This is more true, and revealing, than I suspect Reid knows. The thing is, constitutional rights are supposed to be granted by, well, the constitution, not 9 lawyers dressed in black robes.
22 Comments:
Scott,
Thanks for explaining this. You shouldn't be surprised at a Brit misunderstanding the US constitution - pretty much no-one in the UK knows how our own, unwritten (sort of, not really) constitution works. You would have thought it was fairly simple to understand the word ‘constitutional’ in this case of abortion – is it in the constitution or not?
I have a question though (and this is not a partisan one): given that it's impossible for any text, no matter how well written, to be free of interpretation, is it not also impossible that any jurist’s political, ethical or moral beliefs will not influence the way they follow the constitution?
Hi Scott
I have a question too. Your definition of a good judge appears to someone who sticks rigidly to a document written more than 200 years ago:
"Conservative jurists, unlike their liberal brethren, tend to recognize the fact that they do not exist to do the “right” thing, they exist to follow the constitution. In contrast liberal jurists embrace the ridiculous notion of a “living constitution", because it allows them to justify whatever decision will provide the “right” outcome, regardless of what the words in the constitution actually say and mean."
Do you really mean this? Where will America be in 1,000 years if it can't move on from a document written in the late 1700s? Surely a "living constituion" is beneficial to conservatives as well as liberals.
Nick,
Sure, I suppose it is inevitable that some decisions will be influenced to some degree by a jurist's own ethical and moral beliefs. However, the legitimate role of a jurist calls for him to avoid that as much as possible. It is wrong to think that simply because it is inevitable, it should be embraced. Sort of like the fact that a reporter can never be totally objective does not relieve him of his responsibility to be as objective as possible.
SC
pd,
I do really mean this.
America is not stuck being governed by a document that was written in the 1700s. There is a process by which it can be, and in fact has been (27 times), changed to reflect modern notions that were not originally present. Such changes must be accomplished through a democratic process in order to ensure that changes do indeed reflect the feelings of the country as a whole, rather than the feelings of a few lawyers or judges and their like minded friends. If we allow, and indeed look to, judges to make decisions about how laws in general, and the constitution in particular, should be "changed" in order to reflect changes in societal notions of justice, then we have forfeited our right to govern ourselves through elected representatives, and have essentially granted 9 lawyers in black robes the power to govern us by fiat. (In fact, that can actually be reduced to 5 lawyers in black robes, a simple majority.)
The power of the Supreme Court to rule the country as it sees fit is checked by one thing...the words of the laws on which they rule. If we expect justices to issue rulings not based on the law as it was written and understood by elected representatives, but instead based on their own personal sense of what the law "should" mean in today's day and age, then the power of judges is basically unlimited. The Supreme Court would cease to be a court, and would, simply, become a super-legislature, with unlimited veto power over democratically elected legislators.
Yes, it is true that embracing the notion of a "living" constitution could conceivably be beneficial to some conservative causes. For example, the Supreme Court could rule that, despite the fact that there is nothing in the constitution that defines marriage, and despite the fact that regulation of the institution of marriage has always been constitutionally recognized as being within the purview individual states rather than the federal government, the modern era requires a national definition of marriage, and therefore individual state laws granting marriage status to gays are unconstitutional. This would be an example of liberal jurisprudence in pursuit of conservative political aims. This is precisely why conservative jurisprudential philosophy must be distinguished from conservative political positions. They are not the same. It is worth noting, BTW, that when conservatives opposed to gay marriage attempted to federalize the issue, they did not (as liberals have done with, say, abortion) try to get the Supreme Court to do it by judicial fiat. They proposed doing it legitimately through a proposed amendment to the constitution.
SC
I think you could avoid some of the confusion by using the term "judicial activists" to refer to the people who believe in re-interpreting the law. I think this is the terminology used within the legal profession.
I am led to believe that judicial activism could be said to describe the actions of the court in allowing so called "Jim Crow Laws" to be passed by Southern States. Of course the common thread between then and now, is that the people who favoured interpreting the law to suit their own views are Democrats.
pdberger's comment illustrates why the EU has had such a difficult time writing a constitution. There's little understanding of what a constitution is in Europe. A constitution is not intended to cover every possible decision that needs to be made. That's why, for example, a pro-choice person such as myself, understands that the issue of abortion is not properly decided by the USSC, it is properly decided by the people, through state elections. The constitution covers broad principles that do not change with time, that's the point. If Europeans understood this, they might be able to write (and get an affirmative vote from their populations, those that are permitted to vote on the issue) a Constitution.
avaroo,
The EU constitution was never intended to be a constitution in the US sense. That word was chosen, unadvisedly in my opinion, to describe a series of documents that sought to bring together existing ratified treaties plus add on some new rules to make up the EU democratic deficit and include national legislatures in the EU legislating process.
If Europeans understood this there would be a lot less trouble in signing it into law. On the other hand, if it really was a constitution as you describe it, it would never get past the first post, not because the US constitution is lacking in any way (far from it) but because the EU is made up of 460 million people who share thousands of years of mainly antagonistic history, so even agreeing on broad principles is nigh on impossible.
Getting everyone to agree to the American constitution when it was originally written was hard enough, and then the population was small and the US was making a fresh start. Can you imagine trying to get 250 million Americans to agree on a new constitution based on broad principles today?
Scott, I agree to an extent, but those 27 amendments you speak of include the ten amendments that make up the Bill of Rights and that were adopted within a few years of the ratification of the constitution.
So now we are down to 17 amendments in more than 200 years, of which TWO include prohibiting the manufacture and sale of alcohol and an amendment repealing the prohibition.
Mostly the remaining 15 are amendments concerning the political machinery of the country like establishing the direct election of senators, limiting the presidency to two terms and limiting congressional pay rises (unless you want to go back further to the abolition of slavery).
That's not much progress in over 200 years, especially considering more than 10,000 amendments have been introduced during that period. Let's face it, amending the US Constitution is a very difficult thing to do.
I understand that in your view of democracy only elected representatives decide how the people should live. But that view assumes that all politicians act in the best interests and according to the will of their electors.
Surely, by being above politics, a SC justice can weigh matters better than a politician who is at the mercy of interest groups, lobbyists and financial sponsors. Plus a Justice has no fear of losing their job. What is at stake is their integrity--something many politicians seem to shed daily.
Surely, one of the SC's roles is to provide a counterpoint to the political machinations of elected representatives? Isn't the tension between the three exactly what the Founding Fathers were striving for?
pd,
You say that it is "not much progress" to have adjusted the constitution mostly to account for the political machinery of the country. But that is precisely what the constitution exists for..to define the machinery of the federal government.
With the exception of a few clauses (such as defining the terms of citizenship), the constitution exists to define 1) the structure of the federal government and 2) the powers granted to the federal governnment. Now, unless you think that the powers of the government should be in constant flux, it is not clear to me why you think that having 27, or 17, or 15 amendments over the last 230 years represents a lack of "progress". The constitution should be difficult to change, because it should be difficult to grant the government greater and wider powers.
Most people nowadays view the constitution as a bulwark for individuals against governmental power. It is that, especially with regard to the Bill of Rights, but it is (or, rather, is supposed to be) also a bulwark for states against the power of the fed. The constitution envisions that the bulk of governing will be done at the state level, which is precisely the purpose of the 10th amendment - "The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The power of the federal government is supposed to be limited to a few, explicitly defined, tasks. Since most of the governing power is reserved to the states (each of which, by the way, has its own constitution), it is there that adaptation to changing social and cultural notions should be occurring, and it should be occurring through the only way that "public sentiment" (to the extent that the term has real meaning) can be measured...through the democratic process of voting.
My view, by the way, does not assume that all politicians act in the best interests and according to the will of their electors. It simply accepts that elected representatives are the only holders of governmental power that are directly accountable to the people. Hence, the self interests of the people will be best, if not perfectly, reflected through those representatives. Frankly, I don't understand at all your belief (perhaps faith would be a better word) that the independence that judges have from any form of accountability renders them to be the best gauge of public sentiment or the changing social values of a society. Instead, relying on such unaccountable people to make such evaluations seems an obvious recipe for having their personal values foisted on an unwilling public. And, with the gradual perversion of the role of the federal judiciary that we have seen over the last 50 or so years, that is precisely what has happened.
And, no, one of the SC's roles is not to provide a "counterpoint" to the political machinations of elected officials. The balance of power sought by the Founders resulted not from "tension" between two or three bodies of government each trying to implement their own policy preferences. Rather, it resulted from the placing of different powers into different arms of government, of which the use of each was ultimately necessary in order for the government to legitimately effect any action.
SC
It's interesting that pdberger suscribes to the fallacy so common amongst liberals that there are issues so transparently 'correct' that it unsafe to subject them to democratic decision for fear that they will be rejected.
Another political philosophy that came to prominence in Germany in the 1930's came to an identical view.
It's worth remembering that it was with 'liberal' interpretions of that country's constitution that the road that ended in the concentration camps was signposted.
Nick,
"Can you imagine trying to get 250 million Americans to agree on a new constitution based on broad principles today?"
Interesting question. And because the US Constitution IS based on broad principles, the answer is yes. If it were mired in details, then the answer would be no. The Constitution would not have lasted so long as a relevant document if it contained much to argue about.
"the EU is made up of 460 million people who share thousands of years of mainly antagonistic history, so even agreeing on broad principles is nigh on impossible."
If the EU cannot agree on broad principles, there is zero chance it will ever agree on "new rules to make up the EU democratic deficit and include national legislatures in the EU legislating process". Agreement on broad principles must preceed agreement on details in pretty much any union, political, personal, employment, etc. Otherwise, you'll never agree on the details BECAUSE you fundamentally disagree on the broad principles.
Avaroo,
Americans’ are lucky enough to have a revered historical document to work with. It's unlikely that such a document would be created in today's USA, with the current divisive political climate. You also show your ignorance on the formation of the EU, and subscribe to the fallacy so common with Americans that your way is the only way.
The EU already is a political union, albeit one weaker then the United States. It was formed over fifty years by its members agreeing on the details and not broad principles: it began in '51 with the formation of European Coal and Steel Community which dealt with only coal and steel. This was followed by various treaties over the years that made the EEC (a free trade area), expanded its membership, created the Schengen area (effectively an agreement to get rid of passport control between some, but not all, member states). Eventually the EU was formed, some members unified their currencies, with more of the member states sovereign powers being ceded to the central EU government, and it's precisely because no-one has been asked to agree on broad principles. And also, England has been a unified state since the 11th century, and the UK a functioning democracy since the 19th Century and we've never had a constitution.
Nick,
Two brief points.
1) An economic union is not a political union. As the EU has increasingly sought to transform itself from the former to the latter, it has run up against increasing resistance from the people over which it seeks to rule.
2) I don't think avaroo, or anyone, suggested that the American way is the "only way". Clearly political unions can be formed in other ways, most notably at the point of a sword or gun, and clearly nations can survive and prosper without a written constitution. The UK proves the point in both cases.
SC
Nick, I don't know that I would characterize it as "luck" for the US to have its Constitution. You seem to miss the whole point of our Constitution. The current divisive political climate, which is much the same as the usual political divisive climate that has existed for, well, pretty much forever, in the US, is about details, not broad principles.
"You also show your ignorance on the formation of the EU, and subscribe to the fallacy so common with Americans that your way is the only way."
If you can find where I've said this anywhere, I'll agree with you.
"The EU already is a political union, albeit one weaker then the United States."
Actually, the EU is an economic union, not a political one. You list the economic nature of the EU nicely in your response.
"European Coal and Steel Community"
"the EEC (a free trade area), expanded its membership, created the Schengen area (effectively an agreement to get rid of passport control between some, but not all, member states)."
"some members unified their currencies"
Thanks for making my point for me.
"And also, England has been a unified state since the 11th century, and the UK a functioning democracy since the 19th Century and we've never had a constitution."
There's no requirement anywhere that any state have a constitution.
First of all, I don't miss the point of the US constitution. You seem to miss my point that the EU constitution, as it was called, was never meant to be a constitution, was mislabelled as such, and we obviously agree that no state requires a constitution. Avaroo said earlier that "If Europeans understood this, they might be able to write […] a Constitution". I'm saying that we're not trying to write a constitution at all.
The EU most definitely is a political union. The CIA says as much here. Apart from the fact that it's facile to suggest that monetary union and a common central bank is purely economic and not a political policy (the distinction is academic), there are many purely political aspect to the EU. The Schengen area, as I already mentioned, the shared passport, the fact that I can live and work in any member state without any visa issues, the fact that a citizen of any member state can work in the UK without a visa, that I could go any member state and vote in its local elections, the shared social and employment policies, the shared sex equality policies, the tax EU governments pay to the EU used for development projects in other member states, the directly elected members of the EU parliament...
NAFTA is an economic union, the EU is far more than that. If it wasn't, why would there be such a fuss about Turkey joining?
Secondly, I completely concede the point about Americans thinking theirs is the only way. I was merely borrowing a rhetorical device from a previous poster. For that I sincerely apologise.
And thirdly...
Clearly there is no American alive today who was involved in declaring independance or in framing the constitution, so to be born in a nation that has such a fine document as the constitution to work from is fortunate indeed. I'm sorry if the word 'lucky' offended you but I meant it in the same way that I was lucky to be born in the UK rather than North Korea.
Nick,
I'm baffled by your assertion that the EU constitution is misnamed because it is not a constitution.
A constitution, according to my dictionary, is a system of fundamental laws and principles that prescribes the nature, functions, and limits of a government or another institution; or the document in which such a system is recorded.
These are the headings on the 4 parts of the constitution:
I Definition and Objectives of the Union
II The Charter of Fundamental Rights and Citizenship of the Union
III Union Competences
IV The Union's Institutions and Bodies
If that is not a constitution, what is it?
SC
Scott,
OK, so you're right about the constitution. What I should have said was the constitution was mainly about bringing together already agreed upon and ratified treaties, and it was not doing any substantial beyond gathering all of those in one place. But hey, I don't read this blog to have my pre-concieved ideas confirmed and I have learned something, so cheers for that. It's definitely a political union though.
I think that Nick does have a point re: the EU constitution. It did start ostensibly as a "tidying up" exercise - so described by Peter Hain then Minister for Europe.
However, this was already tending towards a misleading statement as the EU elite, in typical style, took the concept and used it as an opportunity to drive forward the project of creating a political union. Hence the concept of a "constitution" was formed at the same time as our own MP's were bein told that it was simply a consolidation of existing treaties.
Remember the EU elite are the guys that said previous treaties would not impose social obligations on the UK's labour laws, only to use the "Health and Safety" legislation to support a uniform 48-hour week working time limit.
Nick,
I wasn't trying to slam you. I seriously thought you might know something about it that I didn't know. Frankly I don't follow the EU constitution debate very closely because I think that any attempt to create a real semblence of a politically unified entity is destined to failure. I wait expectantly for the day when a country withdraws from the Euro and starts printing its own currency again.
Yes, the EU is increasingly a political unioin. Which is precisely why it is becoming less and less viable.
SC
"Clearly there is no American alive today who was involved in declaring independance or in framing the constitution"
I can't see where anyone said there was.
"so to be born in a nation that has such a fine document as the constitution to work from is fortunate indeed."
I agree.
"What I should have said was the constitution was mainly about bringing together already agreed upon and ratified treaties"
If that were true there would have been no reason to vote on it.
"and it was not doing any substantial beyond gathering all of those in one place."
oh, but it was, as RichardJohn pointed out. That's why it failed. EU political elitrs saw it as a chance to ram stuff down the throats of the EU public.
"It's definitely a political union though."
So far you've mentioned only one thing that's even vaguely political, the dropping of the requirement for a passport among EU members. But even that is economic.
Hi Avaroo,
"I agree"
good.
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