Wednesday, November 10, 2004
Response to Matt's stuff
First, a good point he brings up. Me is Matt, not me. Thoughts?
Dave:
But the Court doesn't hesitate to overturn itself when it comes time to support the Left, e.g. Lawrence overturning a case barely ten years old. Stare decisis only seems apply these days when the justices want a decision, but have no judicial reason to give one.
Try reading some of these elaborate multi-part tests and then come back and tell me with a straight face that they worked through that logically, rather than deciding what they'd like and then bending over backwards to try to make it look like the same old thing.
Me:
I would have to agree that many times, justices are more concerned with outcome than with clarity of judicial reasoning, but I do think that some justices are more concerned with stare decisis than others. O'Connor, for example, seems willing to let even bad law stand on stare decisis grounds, which is why she refused to overturn Roe v. Wade.
Another point is that I wouldn't say that only the liberal justices are guilty of deciding cases based on their own belief systems. The primary example of a conservative judge doing so would be Scalia's (and Rehnquist's) signing of the opinion in Bush v. Gore. Scalia has flat out stated that the Equal Protection Clause of the Fourteenth Amendment was only written to apply to free black slaves, yet in that case, he became willing to apply it to vote-counting methods. Also, though the court has not overruled the Miranda case, the recent Chavez case has potentially made it practically useless. I'd be happy to speak more to this if you'd like, but for now Civil Procedure is calling me.
Now for the other stuff. I'm in red, he's in blue.
I think you make a lot of important points about the nature of government, especially the point that the government, in passing laws, is not telling us what is moral, it is telling us what is allowed. That is to say, the people decide what is moral, then elect representatives who agree with their values, who in turn prohibit or mandate certain conduct. These laws cannot tell us what to think or believe, they can only tell us what to do (or not do). Keep in mind that this is a very cursory overview of the political process; I'm sure we all know how these things work, I'm just hoping that elucidating these concepts will help to clarify the discussion for everyone involved.
The thing I would like to hear your opinion on is the operation of the Constitution in this process, specifically with regards to the abortion issue. Since the people could theoretically decide that anything is immoral, we as a society need some limits on government authority that the majority cannot overrule, hence, the Constitution. What do you think of the Supreme Court's constitutional logic in Roe v. Wade, and the concept of a constitutional right to privacy in general? I personally find it rather spurious (at least as applied to abortion), but I'd like to hear your opinions, as someone who has obviously thought these issues through quite thoroughly.
Indeed, it seems that one of the most important features of our state is that a majority can't do whatever it wants, even a supermajority can't do whatever it wants unless you can amend the Constitution to get your point across. I find the logic on RvW to be a little, shall we say, disturbing. The claim of Chief Justice Blackmun, delivering the opinion of the Court, is that "Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries." Does this occur in the decision? Not really, I think. He spends a lot of time talking about ancient attitudes towards abortion, goes into English common law, misunderstands Aquinas, and generally talks about a lot of things not having terribly much to do with the Constitution. The crux of the argument seems to occur when he refers to the various past cases dealing with privacy, looks at the Ninth amemdment, and seems to say that abortion is essentially reserved to the people. Thus, there is no compelling state interest in preserving the life of its citizens. That, I think, is a misunderstanding of the purpose of states in the first place, and not something I think the Founding Fathers would agree with. If the state can not protect those it is responsible for, what can it do? I just make all of this up, so I'm interested to hear comments on my (lack of) logic.
As for the matter of Griswold v. Connecticuit, I say bah. Constitutional amenders aren't dumb people. If there was to be a constitutional right to privacy, overriding the ability of legislatures to legislate, it would have been there, plain as day, rather than suggested by other somewhat unrelated things. I suppose I'm unsympathetic because no one really believes that privacy is our right, except perhaps Doomed0. If I have a right to privacy, why can't I own assault weapons in the privacy of my own home? Why can't I go to whatever doctor I want, why must there be certifications for these things? And etc. We have certain rights, but a right to privacy basically means that we have all rights, unless the Constitution says otherwise, which seems problematic to me. On a less legal basis, I don't think we have the right to do wrong, regardless of anything else, so stopping someone from doing something wrong is usually ok, if the wrong is so grievious that intervention must be taken. I don't have the reference from Aquinas, but if someone could supply it it would be much appreciated. This goes nicely with your next statement.
The other thing I'd like to hear you discuss in more detail is your treatment of the First Amendment. Though the words "separation of church and state" are not literally in the First Amendment, the concept is endorsed heavily enough by the Establishment Clause that even Justice Scalia would not think of questioning it, at its most basic level.
At its core, the Establishment Clause is meant to prevent the creation of a state religion. In order to prevent this from happening, the Court has developed the separation of church and state doctrine, which forbids overt state endorsement of any specific religion. Currently, government action in the religious sector is governed by the "Lemon test," coming from the case of Lemon v. Kurtzman, which states that, in order for a statute regarding church and state involvement to be constitutional (i.e. in order for the government not to be construed as "establishing" religion), the statute must (1) have a valid secular purpose, (2) neither advance nor inhibit religion, and (3) avoid excessive entanglement. Of course, all of these terms, from the word "establishment" to the term "excessive entanglement," are open to a great deal of interpretation. I just wanted to point out that the debate is not, or should not be, whether the Constitution permits a separation of church and state, but instead where the boundaries of the separation lie.
All very true, of course. I guess I have one agreement and one more basic issue that seems to be glossed over. Firstly, then, Indeed the state can not support or in general favor one particular religion, as you said. That would be bad news. What I was trying to get at, however, is that this doesn't mean that religions can't "interfere" in the state, or better said, that religions must be silent when it comes to public life. Certainly the government can't and shouldn't do things to help one religion, but I don't see that that means religious believers should be excluded from government on this basis. Certainly this wasn't the case in the past.
This sort of leads into part two, mainly in that I have a deep distrust of point one of the Lemon test. Mainly that, what exactly is a secular purpose? Looking at abortion in particular, the argument is something like opposition to abortion is a religious doctrine, so it shouldn't be allowed into discussion. But, I think, that's sort of missing the point. For a religious believer, to some extent, every belief has to do with God, every action has a religious purpose. The summum bonum is God's will, and that's the same end towards which all justice follows. I, for example, really don't see any reason not to go out and do whatever I please if God doesn't exist, for if there is no justice in the world, if I can get away with whatever I want without consequences, why not?
What, then, is a secular purpose? Is there such a think as purpose in a world devoid of God? Some say yes, but on a deep level I can't see how that could possibly be. The only thing that comes to mind is that the Church's definition of secular and religious must be what is going on in the Constitution (thanks to Blair for this one). That is, you have to acknowledge this religion thing and this God thing exist, but agree that no conception of God can dominate, and that arguments that ignore Him are also good. Basically, admit all points of view regardless of the reasons for them, in a public forum. Thus, arguments abour abortion and whatnot would be secular because it doesn't matter why people choose their end, their purpose, or what their end is. (Needs editing but I have to go to class, I wish I could spend this much time on my homework).
I guess the more general question still unaddressed is how can the government protect rights in a democracy? I guess the Constitution's tough amendment process is really the only guarantee of that. Certain things were written in there at the beginning for various reasons, and ultimately enough people can amend the Constitution to do whatever they want. So, ultimately there are no guarantees of rights except the right of rebellion against an unjust state in the last resort. However, it doesn't seem likely that one could convince enough people in this country to do much that goes against the original spirit of the Constitution in terms of an amendment. But I suppose anything is really possible in the long run. Never trust something as true that, well, is only very likely. You will be disappointed, sooner than later.
OK someone else needs to read this and tell me what I did wrong because I don't have enough time to think about it. Thoughts?
Dave:
But the Court doesn't hesitate to overturn itself when it comes time to support the Left, e.g. Lawrence overturning a case barely ten years old. Stare decisis only seems apply these days when the justices want a decision, but have no judicial reason to give one.
Try reading some of these elaborate multi-part tests and then come back and tell me with a straight face that they worked through that logically, rather than deciding what they'd like and then bending over backwards to try to make it look like the same old thing.
Me:
I would have to agree that many times, justices are more concerned with outcome than with clarity of judicial reasoning, but I do think that some justices are more concerned with stare decisis than others. O'Connor, for example, seems willing to let even bad law stand on stare decisis grounds, which is why she refused to overturn Roe v. Wade.
Another point is that I wouldn't say that only the liberal justices are guilty of deciding cases based on their own belief systems. The primary example of a conservative judge doing so would be Scalia's (and Rehnquist's) signing of the opinion in Bush v. Gore. Scalia has flat out stated that the Equal Protection Clause of the Fourteenth Amendment was only written to apply to free black slaves, yet in that case, he became willing to apply it to vote-counting methods. Also, though the court has not overruled the Miranda case, the recent Chavez case has potentially made it practically useless. I'd be happy to speak more to this if you'd like, but for now Civil Procedure is calling me.
Now for the other stuff. I'm in red, he's in blue.
I think you make a lot of important points about the nature of government, especially the point that the government, in passing laws, is not telling us what is moral, it is telling us what is allowed. That is to say, the people decide what is moral, then elect representatives who agree with their values, who in turn prohibit or mandate certain conduct. These laws cannot tell us what to think or believe, they can only tell us what to do (or not do). Keep in mind that this is a very cursory overview of the political process; I'm sure we all know how these things work, I'm just hoping that elucidating these concepts will help to clarify the discussion for everyone involved.
The thing I would like to hear your opinion on is the operation of the Constitution in this process, specifically with regards to the abortion issue. Since the people could theoretically decide that anything is immoral, we as a society need some limits on government authority that the majority cannot overrule, hence, the Constitution. What do you think of the Supreme Court's constitutional logic in Roe v. Wade, and the concept of a constitutional right to privacy in general? I personally find it rather spurious (at least as applied to abortion), but I'd like to hear your opinions, as someone who has obviously thought these issues through quite thoroughly.
Indeed, it seems that one of the most important features of our state is that a majority can't do whatever it wants, even a supermajority can't do whatever it wants unless you can amend the Constitution to get your point across. I find the logic on RvW to be a little, shall we say, disturbing. The claim of Chief Justice Blackmun, delivering the opinion of the Court, is that "Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries." Does this occur in the decision? Not really, I think. He spends a lot of time talking about ancient attitudes towards abortion, goes into English common law, misunderstands Aquinas, and generally talks about a lot of things not having terribly much to do with the Constitution. The crux of the argument seems to occur when he refers to the various past cases dealing with privacy, looks at the Ninth amemdment, and seems to say that abortion is essentially reserved to the people. Thus, there is no compelling state interest in preserving the life of its citizens. That, I think, is a misunderstanding of the purpose of states in the first place, and not something I think the Founding Fathers would agree with. If the state can not protect those it is responsible for, what can it do? I just make all of this up, so I'm interested to hear comments on my (lack of) logic.
As for the matter of Griswold v. Connecticuit, I say bah. Constitutional amenders aren't dumb people. If there was to be a constitutional right to privacy, overriding the ability of legislatures to legislate, it would have been there, plain as day, rather than suggested by other somewhat unrelated things. I suppose I'm unsympathetic because no one really believes that privacy is our right, except perhaps Doomed0. If I have a right to privacy, why can't I own assault weapons in the privacy of my own home? Why can't I go to whatever doctor I want, why must there be certifications for these things? And etc. We have certain rights, but a right to privacy basically means that we have all rights, unless the Constitution says otherwise, which seems problematic to me. On a less legal basis, I don't think we have the right to do wrong, regardless of anything else, so stopping someone from doing something wrong is usually ok, if the wrong is so grievious that intervention must be taken. I don't have the reference from Aquinas, but if someone could supply it it would be much appreciated. This goes nicely with your next statement.
The other thing I'd like to hear you discuss in more detail is your treatment of the First Amendment. Though the words "separation of church and state" are not literally in the First Amendment, the concept is endorsed heavily enough by the Establishment Clause that even Justice Scalia would not think of questioning it, at its most basic level.
At its core, the Establishment Clause is meant to prevent the creation of a state religion. In order to prevent this from happening, the Court has developed the separation of church and state doctrine, which forbids overt state endorsement of any specific religion. Currently, government action in the religious sector is governed by the "Lemon test," coming from the case of Lemon v. Kurtzman, which states that, in order for a statute regarding church and state involvement to be constitutional (i.e. in order for the government not to be construed as "establishing" religion), the statute must (1) have a valid secular purpose, (2) neither advance nor inhibit religion, and (3) avoid excessive entanglement. Of course, all of these terms, from the word "establishment" to the term "excessive entanglement," are open to a great deal of interpretation. I just wanted to point out that the debate is not, or should not be, whether the Constitution permits a separation of church and state, but instead where the boundaries of the separation lie.
All very true, of course. I guess I have one agreement and one more basic issue that seems to be glossed over. Firstly, then, Indeed the state can not support or in general favor one particular religion, as you said. That would be bad news. What I was trying to get at, however, is that this doesn't mean that religions can't "interfere" in the state, or better said, that religions must be silent when it comes to public life. Certainly the government can't and shouldn't do things to help one religion, but I don't see that that means religious believers should be excluded from government on this basis. Certainly this wasn't the case in the past.
This sort of leads into part two, mainly in that I have a deep distrust of point one of the Lemon test. Mainly that, what exactly is a secular purpose? Looking at abortion in particular, the argument is something like opposition to abortion is a religious doctrine, so it shouldn't be allowed into discussion. But, I think, that's sort of missing the point. For a religious believer, to some extent, every belief has to do with God, every action has a religious purpose. The summum bonum is God's will, and that's the same end towards which all justice follows. I, for example, really don't see any reason not to go out and do whatever I please if God doesn't exist, for if there is no justice in the world, if I can get away with whatever I want without consequences, why not?
What, then, is a secular purpose? Is there such a think as purpose in a world devoid of God? Some say yes, but on a deep level I can't see how that could possibly be. The only thing that comes to mind is that the Church's definition of secular and religious must be what is going on in the Constitution (thanks to Blair for this one). That is, you have to acknowledge this religion thing and this God thing exist, but agree that no conception of God can dominate, and that arguments that ignore Him are also good. Basically, admit all points of view regardless of the reasons for them, in a public forum. Thus, arguments abour abortion and whatnot would be secular because it doesn't matter why people choose their end, their purpose, or what their end is. (Needs editing but I have to go to class, I wish I could spend this much time on my homework).
I guess the more general question still unaddressed is how can the government protect rights in a democracy? I guess the Constitution's tough amendment process is really the only guarantee of that. Certain things were written in there at the beginning for various reasons, and ultimately enough people can amend the Constitution to do whatever they want. So, ultimately there are no guarantees of rights except the right of rebellion against an unjust state in the last resort. However, it doesn't seem likely that one could convince enough people in this country to do much that goes against the original spirit of the Constitution in terms of an amendment. But I suppose anything is really possible in the long run. Never trust something as true that, well, is only very likely. You will be disappointed, sooner than later.
OK someone else needs to read this and tell me what I did wrong because I don't have enough time to think about it. Thoughts?
