…says the former constitutional law professor

Oral arguments in front of the Supreme Court over that health care law President Obama called for and signed, which forces people to buy a product from a 3rd party like presidential candidate Obama opposed, and is based on what former Massachusetts governor Mitt Romney put in place on a state level and is fine with while saying federally it is tyranny, recently took place, ending last week.  On whether the law will in part or whole be considered beyond the bounds of the federal government, Obama gave the following remarks from the Rose Garden:

Ultimately, I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. […]

I just want to remind conservative commentators that for years what we have heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this has been a good example. I am pretty confident this court will recognize that and not take that step.

Justices of the Supreme Court, upon confirmation, effectively can serve for the rest of their lives.  Judicial Review allows them to declare laws void upon challenge — regardless of how popular those laws are.  According to the foundational fable of the U.S. government, a key portion of which prior to becoming the head of the U.S. government Barack Obama achieved a level of recognized expertise in sufficient to allow him to lecture others about it, restraining what a “strong majority” of a “democratically elected” legislative body can do is the entire damn purpose of the Supreme Court!

If legitimacy begins and ends at “there was a vote, majority rule, bitches!”, then the implications are clear: Any judicial action whatsoever fits the definition of “judicial activism”, and any legislation that can get 50%+1 is automatically a-ok, even if it amounts to saying the other 49.9 are to be fed to lions.  That someone who past majorities wouldn’t have even allowed to learn to read is willing to dismiss this just about sums up how thoroughly power corrupts.

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About b-psycho

Left-libertarian blogger & occasional musician.
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12 Responses to …says the former constitutional law professor

  1. DBake says:

    If legitimacy begins and ends at “there was a vote, majority rule, bitches!”, then the implications are clear: Any judicial action whatsoever fits the definition of “judicial activism”, and any legislation that can get 50%+1 is automatically a-ok, even if it amounts to saying the other 49.9 are to be fed to lions.

    Except he’s only saying that under the most maximally uncharitable reading of his statement possible. It would be more natural to read him as saying the Court shouldn’t overturn an act of the democratically elected legislature based on an extremely contentious, arcane, and subtle reading of the Commerce Clause.

    Are you actually saying that the individual mandate is a violation of civil rights comparable to feeding people to lions just for fun?

    That someone who past majorities wouldn’t have even allowed to learn to read is willing to dismiss this just about sums up how thoroughly power corrupts.

    Yeah, thank God the Court stepped in to stop that.

  2. B Psycho says:

    It would be more natural to read him as saying the Court shouldn’t overturn an act of the democratically elected legislature based on an extremely contentious, arcane, and subtle reading of the Commerce Clause.

    I went by what he said. He didn’t say his interpretation was that it was constitutional because of his view of the commerce clause and leave it at that, he emphasized that a majority of congress at the time passed it and pointed out how the judges were “unelected”. For the purpose that the court ostensibly serves, neither is a relevant point.

    My remark about 50%+1 feeding the other 49.9 to lions isn’t to say that the mandate is equivalent. As bad as it is, obviously it’s nowhere near that. My point is that taking what is popular at a moment in time as if it is legitimate merely because it is popular opens the door to legitimizing injustice because the targets are outnumbered. Feeding the other 49.9 to the lions is wrong because it violates their rights, which cannot justly be declared void regardless of if the vote is that narrow or 99/1.

    I assume that Obama, as both a former constitutional law professor and a black man, is more aware than most as to the risk of drawing the short end of the majority absolutism stick. To wield it anyway, you basically conclude “eh, it serves my immediate interest”. Never mind that the same kind of majority absolutism is what right-wingers claim whenever they want to shove aside the constitution in favor of their favorite sections of the bible (“This is a majority christian nation! Activist judges! Waaaah!”).

    I’m not sure if you’re new here or not, but my description of the structural purpose of the court isn’t meant as a blanket endorsement of its members or their decisions. For example, the recent decision allowing strip-searching of people arrested on even the most minor suspicions is a load of crap IMO. Also, the same Commerce Clause reading that may soon invalidate the individual mandate completely contradicts what the court said about it back in Gonzales v Raich.

  3. DBake says:

    Thanks for providing a serious reply. I am new here, btw.

    That said, I think there’s some serious problems with your position here. First, whatever complaints we have against Obama, your reading of what he said is super uncharitable. If I say “Violence is wrong” and you immediately accuse me of denying people a right to self-defense, or I say “Lying is wrong” and you go on to say that I believe in telling the SS officer where the Jews are hiding, you are obviously strawmaning my position. Most of the time when we make moral pronouncements, these are understood to have all sorts of implicit caveats and provisos. Clearly, in the examples just mentioned, I mean something like “Violence and lying are wrong in the vast majority of circumstances.” I don’t see why we can’t read Obama’s statement in the same way.

    He didn’t say his interpretation was that it was constitutional because of his view of the commerce clause and leave it at that, he emphasized that a majority of congress at the time passed it and pointed out how the judges were “unelected”. For the purpose that the court ostensibly serves, neither is a relevant point.

    That’s incorrect. The Court is supposed to interpret law, not legislate it– that’s it’s ostensible purpose, if you like. Virtually explanation I’ve ever read of why it’s power doesn’t extend to the latter cites the fact that it isn’t elected. And how far the prior power extends is a matter of contention– again because the justices aren’t elected. Jefferson thought it should not be able to declare Congressional legislation unconstitutional, for precisely that reason. Oliver Wendell Holmes thought that the court should show extremely high levels of deference to Congress on the same grounds. Even the Court itself admitted, via Justice Kennedy, that because Congress is elected and the Justices aren’t, the Court owes *some* level of deference. Acts of Congress should get the presumption of constitutionality.

    Given that the level of deference the Court needs to show is itself under debate, it seems perfectly legitimate for the President to say that he believes that the Court is insufficiently deferential. First, the fact that the Commerce Clause is murky means that there are a number of reasonable interpretations of it, and in that case, the Court should simply assume that Congress’s reading of the clause is the correct one. (I’m not an expert here, but my understanding is that Holmes thought something like this.) Second, given that, as you say, it looks like many of justices are going to contradict their own earlier rulings on the CC, it’s quite reasonable to think that they aren’t making a good faith effort to interpret the law, but are instead issuing an edict: something they don’t have the power to do, because they are unelected.

    I also don’t see why thinking that majority rules in the case of health insurance policy commits me to thinking that majority rules in the case of killing large numbers of people. I’m pretty sure there are political philosophies out there that could mark distinctions between the two cases.

  4. dL says:

    Interestingly, you are essentially legitimizing the thinnest of transient majorities to enact laws that redefine the bounds of constitutional constraints to impose an interpretation(on the applicable “broadness” of the commerce clause) where there is no consensus(“murky” as you put it). The commerce clause can be a totalitarian instrument since it could apply to every single human activity: a total regulation of all possible human behavior(e.g, “speech”).

    Your defense of this only demonstrates the Anthony De Jasay argument against democracy vis a vis liberal violations. De Jasay’s argument was outright liberal violating domination by the thinnest of transient majorities. I would approach it from more of a traditonal public choice angle: the rent-seeking, i.e, the purchasing of legal recognition as means to secure economic rents, redefines the consititional constraints. This thus places the State as the total source of government: which is a liberal violation.

  5. DBake says:

    Interestingly, you are essentially legitimizing the thinnest of transient majorities to enact laws that redefine the bounds of constitutional constraints to impose an interpretation(on the applicable “broadness” of the commerce clause) where there is no consensus(“murky” as you put it).

    No. I’m not.

    The commerce clause can be a totalitarian instrument since it could apply to every single human activity: a total regulation of all possible human behavior(e.g, “speech”).

    Ummm… So the Bill of Rights is pretty clear. And there are certain activities which are clearly not commerce. If the murkiness of the commerce clause makes totalitarianism possible, how does allowing unelected individuals to interpret it solve the problem? And show how you get to totalitarianism, under the existing constitution, through the commerce clause. Show your work.

    I decided to comment here because I was impressed that the owner of the site seemed to be a thoughtful libertarian. I wanted to see arguments for the position other than ‘Slippery Slope to Stalinism.’ But no, apparently the problem with a broad interpretation of the commerce clause, or a general (not absolute!) rule of deference to the elected legislature, is that it brings us only a step away from living under a God-Emperor.

  6. B Psycho says:

    If the murkiness of the commerce clause makes totalitarianism possible, how does allowing unelected individuals to interpret it solve the problem?

    It doesn’t. As demonstrated by their willingness to contradict themselves, it really just moves the decision from 50%+1 to whoever won the last few presidential elections and/or nominated young enough justices.

    re: broad reading of the commerce clause: the question to me is more “what stops it?”. What reliable method exists of establishing a firm Do Not Cross line? I’d personally opt for not allowing the power to exist in the first place, seeing the claim it comes from of representation of the public as a whole as inherently false, but then I’m an anarchist, of course I’d say that.

  7. dL says:

    You need to step up your “logical chops.” I’m not guilty of the “Slippery Slope” fallacy which is to assert X leads to Y without detailing/specifying the path from X to Y.

    Firstly, I didn’t define Y=”Stalin.” I defined Y as the State=”the total source of government.” This, by definition, implies “totalitarianism,” but it doesn’t specify the precise form. However, what it does indicate is a fundamental liberal violation. Liberal Political Theory–going back to Hobbes/Locke, etc–views the State and politics as artificial constructs. The State as the total source of government is a fundamental violation of liberal political theory.

    I did outline a path ,vis a vis Public Choice Theory, of how rent seeking under the commerce clause –where the rent-seeking agents define the legal recognition for behavior to be regulated as means to secure rents–can lead to redefining the constitutional boundary constraints of the system.

    You, on the other hand, are guilty of the logical fallacy of “begging the question.” That is, we defer to the legislature unless the recognized boundary constraints are threatened, but it is the courts(as the interpretive body) that actually interprets the boundary violations. Begging the question is a frequent fallacy committed by partisans who view their side subjected to “judicial review” as a usurpation of “democratic will” but view the other side’s claims of immunity from judicial review as tyranny.

    Now, I am arguing here purely from a liberal point of view and not a libertarian one.

  8. DBake says:

    BPsycho:

    I would draw a line in the sand around core civil liberties– protection of political speech, right to jury trial, freedom of conscience, etc. Other than that, I don’t think there are sharp boundaries. What you have, are areas where more or less scrutiny should be applied. I think that the way the courts actually reason about freedom of religion cases is helpful here. First, you have questions about whether there is a rational basis for the law. Then you have questions about how significant a burden the law places on religious practice, and the more significant the burden, the more the state has to demonstrate some compelling interest, show that exemptions from the law could not be granted without creating significant problems, etc. This ends up meaning no hard and fast rules, and so we have to rely on common sense. But I think this is how the Supreme Court actually reaches its decisions anyway. But, as Obama and Jefferson and Holmes pointed out, it’s not an elected body. So, my thought is, it should generally not declare an act of Congress unconstitutional unless the act is clearly so. (There are cases where reasonable people disagree what the Constitution says, and in these cases, the Court should defer to the legislature, because the latter is elected, and more importantly, can be unelected. The Court is unaccountable.)

    In any case, in scenarios you’re imagining, where half the population is dead set on killing the other half, I don’t see the court as providing much protection anyway. I mean, SCOTUS took the side of the Cherokee; the Trail of Tears still happened.

  9. DBake says:

    You need to step up your “logical chops.”

    Probably. Everyone could stand to. Still, I find it amusing that I’m getting lectured by you here, when your argument is honestly incoherent.

    I’m not guilty of the “Slippery Slope” fallacy

    Agreed. Now that you’ve spelled out your argument, it is vastly weirder than that.

    Firstly, I didn’t define Y=”Stalin.”

    Right, that was a joke. A case of hyperbole, if you like, for suggesting something as patently insane as that a *general* tendency of deference to the legislature would naturally lead to totalitarianism. But I now see that what you really thought was…

    I defined Y as the State=”the total source of government.” This, by definition, implies “totalitarianism,” but it doesn’t specify the precise form.

    A general tendency of deference would just be totalitarianism.

    So, some points: I have no idea what you mean by ‘total source of government.’ This is not a recognized term of liberal political theory, I can tell you. I also don’t quite understand how the source of government is supposed to determine whether a system of gov’t is totalitarian or not, under any ordinary understanding of source. Your definition of ‘totalitarian,’ besides being vague, doesn’t match the standard definitions I’m aware of, which focus on dictatorships that politicize everything.

    I did find this ironic, however:

    Liberal Political Theory–going back to Hobbes/Locke, etc–views the State and politics as artificial constructs. The State as the total source of government is a fundamental violation of liberal political theory.

    Hobbes explicitly denies that there can be checks and balances within the state. In fact, he says that if courts have the ability to restrain the supposed sovereign, then this simply proves that the court is actually the sovereign power. Locke does not ever advocate a power of judicial review, seems to assume supremacy of the legislature, and gives the legislature, not the judiciary, the primary responsibility for protecting people’s natural rights. So how, exactly, does suggesting that SCOTUS should only overturn acts of Congress in extreme cases involve advocating a “fundamental violation of liberal political theory?” What principle am I violating? Did Locke and Hobbes violate it too?

    I did outline a path ,vis a vis Public Choice Theory, of how rent seeking under the commerce clause –where the rent-seeking agents define the legal recognition for behavior to be regulated as means to secure rents–can lead to redefining the constitutional boundary constraints of the system.

    Yeah, so first of all, that was a super sketchy ‘outline.’ I don’t see that getting published in peer reviewed work on PCT anytime soon. Second, Public Choice Theory, like its cousins Rational Choice Theory, Game Theory, and Bayesian Decision Theory, involves huge levels of idealization. They give us mathematical models which are useful in some situations, and not so useful in others. Can you provide empirical evidence that a relatively weak court will lead to totalitarianism, via rent-seeking behavior (why libertarians obsess about this over all other evils is beyond me). Note, most countries have much weaker courts than the US, so this shouldn’t be hard to do, if things really work as you say they do. Third, if PCT really tells us rent-seeking will lead to totalitarianism, how does a powerful Court help? Show your work.

    You, on the other hand, are guilty of the logical fallacy of “begging the question.” That is, we defer to the legislature unless the recognized boundary constraints are threatened, but it is the courts(as the interpretive body) that actually interprets the boundary violations.

    I don’t really see how that’s begging the question. Are you sure you’re using the term in the standard way? You seem to like to win arguments by redefining words. In any case, I’m claiming that the Court should only strike down legislation if it patently contradicts the constitution, or has no rational basis, or only a very weak rational basis, despite involving heavy intrusion into people’s lives.

    Now, if your question is, how do I keep the court from exceeding that power, my answer is that I don’t know. But the same problem shows up for you. Presumably we both think the Court can abuse its interpretative power, or simply get the constitution wrong. So who will make sure that it doesn’t exceed its authority? I don’t know. This is the problem that led Hobbes to think that checks and balances were impossible. My best guess is that if the Court constantly makes decisions that abuse its authority, it risks being perceived as illegitimate, which would be the end of its power. But isn’t this just a version of the ‘Who will guard us from the guards?’ problem? And did someone solve that one while I was busy? Does the solution favor a very powerful Court? Explain how.

    Begging the question is a frequent fallacy committed by partisans who view their side subjected to “judicial review” as a usurpation of “democratic will” but view the other side’s claims of immunity from judicial review as tyranny.

    Okay. But so what? None of this establishes how much power the Court should actually have.

    Now, I am arguing here purely from a liberal point of view and not a libertarian one.

    I’m sorry, I know of no form of liberalism that works the way you describe. I will say that the power of judicial review is contentious in contemporary liberal theory. See Dworkin and Waldron’s debates on this.

  10. B Psycho says:

    rent-seeking behavior (why libertarians obsess about this over all other evils is beyond me)

    It’s not that it’s the worst evil, it’s that it’s such a ridiculously common one. The structure intended to handle provision of public good tending to in practice facilitate theft on behalf of favored interests directly undermines a basic point given in its favor.

  11. DBake says:

    Right, but wouldn’t generally be an empirical question whether rent-seeking or free-riding on public goods result in greater economic inefficiency in a particular case?

  12. dL says:

    I’ve devoted quite a bit of space at my blog elaborating on the points relative to the Public Choice critique. Feel free to click on my Username to peruse. Thanx…

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