Saturday, July 8, 2006

Conservatives hate the judiciary

It is not really a shock that conservatives hate the judiciary, but the following comments on Little Green Footballs act as a fine example of how and why conservatives hate the judiciary. To that, I wrote a very long and detailed reply, that I think you might enjoy reading. 1) Conservatives are the biggest "judicial activists" out there - they use the 11th amendment to justify practically unlimited power of states. The 11th amendment states:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Yale Daily News wonderfully lays out how the conservative justices have judicially activated the crap out of this amendment.

The Eleventh Amendment is meant to give states immunity to suits arising under state law (this is perfectly consistent with the traditional story that the Eleventh Amendment was passed in order to overturn the 1793 case of Chisholm v. Georgia, which arose under state law, but between a state and a citizen of another state), but not to suits arising under federal law.

But that's not how the Supreme Court has seen it. Since 1996, the Court has extended absolute sovereign immunity to states, both in state and federal courts. This immunity has protected the states against suits by both their own citizens and those of other states.

What does this mean? Basically, that the states can get away with an awful lot. In the Seminole Tribe case, the state of Florida was allowed to get away with refusing to comply with a federal law that required it to negotiate in good faith with native tribes for the purpose of allowing the tribes to operate gambling activities in the state. In the 1999 case of Alden v. Maine, the state of Maine was allowed to get away with a violation of the Fair Labor Standards Act in the treatment of state employees. In the two 1999 Florida Prepaid cases, Florida violated the patent rights of a private company. And in the Kimel case, Florida violated the Age Discrimination in Employment Act in its dealings with its employees.

But the principle involved is much broader; it cuts to the very notion of what American government is. The Constitution opens with an assertion of popular sovereignty: "We the People" are sovereign here. Unlike monarchical England, whence we imported the concept of sovereign immunity, the state here is sovereign only insofar as it is our servant.

The Supreme Court has repeatedly appealed to the "dignity" of the states in its sovereign immunity decisions, but that kind of talk flows from what Blackstone referred to as the "imperial dignity" and "great and transcendent nature" of the King. It certainly has no place in a free American polity! Ours is a government "of the people, by the people, for the people," and when it violates the rights of the people -- whether those rights are constitutional or statutory in origin -- it ceases to be sovereign. As Akhil Reed Amar, the Southmayd Professor of Law at the Yale Law School, points out, "when government violates the express limits on its powers imposed by We the sovereign People in our Constitution, government, properly speaking, is neither 'sovereign' nor 'immune' and cannot in justice or logic invoke 'sovereign immunity.'"

2) Marbury v. Madison set the groundwork such that the judiciary is the third branch of government via judicial review. In other words, a function of the judiciary is to overturn unconstitutional laws that the legislature enacts, or unconstitutional actions of the executive. To disrespect this disrespects the very constitutional republic we live in. 3) No arguments from me that Roe v. Wade was poorly written. However, the notion of a "penumbra of rights" is not out of left field. The framers of the constitution enacted the 9th amendment for a reason. The 9th amendment states:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
This means that rights that existed when the constitution was drafted were meant to be protected, even if not laid out by the constitution. These rights include the right to procreation, right to marry, and the right to privacy. I know you all get up in arms over the right to privacy, but how would you feel if the judiciary decided "You know what? There is no right to marry, because it's not in the constitution." If you do not believe in a "penumbra" of rights, technically that is a possibility. 4) Lawrence v. Texas and the death penalty case from last year were not decided on international law grounds. Indeed, it would be illegitimate of the judiciary to decide a case on international law grounds, because they are meant to ground their rulings in the constitution. However, that is NOT what was done in those cases. Rather, they were decided on constitutional grounds, and international law was cited in "dicta." (flowery language that is not the basis of the holding) In fact, there has not been a single case decided in the history of the Supreme Court on international law grounds. International law has been used in DICTA, but it has never been used as the basis of a holding. 5) The Supreme Court in fact is made up of 7/9 justices chosen by Republicans. Stevens was chosen by Nixon, and Souter was chosen by Bush Sr. Kennedy, as is well known, is a Reagan appointee. As it stands, the Supreme Court is actually QUITE CONSERVATIVE. 4/9 justices are outright conservatives. Scalia, Thomas, Roberts, and Alito really are outright conservatives. Kennedy is a "swing" justice. The four "liberals" are not even particularly liberal compared to the Warren court. 6) There is a very real mission of conservatives nowadays to discredit the judiciary. It is sickening and sad. Here is a statement by John Cornyn on the SENATE FLOOR.
I don't know if there is a cause-and-effect connection but we have seen some recent episodes of courthouse violence in this country. Certainly nothing new, but we seem to have run through a spate of courthouse violence recently that's been on the news and I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in - engage in violence.
This was said after an outbreak of violence against the judiciary and seems to excuse violence against the judiciary. It is dangerous language, and such thought is the thought of those who wish to elliminate a check of power on the president/legislature. Very dangerous indeed. 7) The Kelo decision was a bad outcome, but it was actually in line with the precedant that came before it. I am not happy with the decision, but if you don't like it - then pass laws against it! Easily solved. 8) Overall, the disrespect of the judiciary is dangerous and also stems from a total lack of knowledge of the constitution and the concept of "balance of powers." If you disagree with a judicial opinion, that's one thing. I disagree with MANY judicial opinions. However, this total demogoguery re: the judiciary is disgusting and dispicable.

1 comment:

Steven said...

This makes me think of those movies where the theives rush to the state border and as soon as they get accross they are safe!