MaxedOutMama
Tuesday, May 17, 2005
Blogging Bliss
So much that's so good....
No Oil For Pacifists posts on the history and constitutionality of the filibuster. Very, very informative, with lots of links to sources. He also links to a prior post which had a superb discussion going on in the comments. Lots of back and forth from different points of view by very bright and informed people. It's enjoyable and educational.
True Grit commits the sin of thoughtfulness (not allowed in our society - it messes up the squalling rancor everybody enjoys so much):
Last, I discovered the Federalist Papers (searchable) online. From No. 85 (written by Hamilton who is quoting Hume in the following excerpt):
Yet in so many ways we live in a Golden Age. We have unprecedented prosperity AND unprecedented access to information. When, I ask you, have the objective preconditions for a free and enlightened citizenry ever been so favorable? When have the barriers to full participation in our society that socio-economic differences produce ever been so low? When $300 a year will provide access to primary resources such as the Federalist papers, judicial decisions, newspapers around the world, and in every state, should we not trust ourselves even more? Should we not believe that the truth will emerge in open and public debate?
Update: Hootsbuddy takes up the question of "judicial activism":
No Oil For Pacifists posts on the history and constitutionality of the filibuster. Very, very informative, with lots of links to sources. He also links to a prior post which had a superb discussion going on in the comments. Lots of back and forth from different points of view by very bright and informed people. It's enjoyable and educational.
True Grit commits the sin of thoughtfulness (not allowed in our society - it messes up the squalling rancor everybody enjoys so much):
Why is our way better, and to what degree is it better? And how did we get to this place, because a short look at history shows we weren't always here.Sigmund, Carl and Alfred list two stories and ask us to pick which one is false. Mamacita has already burst into full flame in the comments. I'm not stealing any thunder here - tomorrow SC&A promises to open the envelope. You won't want to miss that occasion.
It sure wasn't secularism. One glance at the Reign of Terror to the Directoire of Revolutionary France will educate you on that point.
But it wasn't an institution of temporal Christianity, either. That had its own list of atrocities. You can read Foxes Book of Martyrs for some of the gory details ( and this is after the Crusades).
So, ok, what was it that lead us to this place of freedom with form, with a literate citizenry who can take responsibility for its own governance?
Last, I discovered the Federalist Papers (searchable) online. From No. 85 (written by Hamilton who is quoting Hume in the following excerpt):
"To balance a large state or society Õsays heå, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they INEVITABLY fall into in their first trials and experiments.''The huge fight over judicial nominations is really because now the judiciary has gained (and is constantly gaining even more) power than either the legislative or executive branches of our government. Nothing, but nothing, could have ever been further from the founders' intent. They would look at this situation and rage at such a system as being unfeasible and destined to end in tyranny. We have come a very very long way from where we started, yet the great evils of slavery and bigotry were largely overcome by popular agitation in a system with a more constrained judiciary. We should all pause and reflect on the practicial limits of the ability of reason and reflection of thirteen men to direct and order a society such as ours.
Yet in so many ways we live in a Golden Age. We have unprecedented prosperity AND unprecedented access to information. When, I ask you, have the objective preconditions for a free and enlightened citizenry ever been so favorable? When have the barriers to full participation in our society that socio-economic differences produce ever been so low? When $300 a year will provide access to primary resources such as the Federalist papers, judicial decisions, newspapers around the world, and in every state, should we not trust ourselves even more? Should we not believe that the truth will emerge in open and public debate?
Update: Hootsbuddy takes up the question of "judicial activism":
We are here simply because the other two branches, the two which depend on votes for longevity, have become so adroit at dodging issues and pointing fingers that legislation has by default become the mission of the judiciary.I think I disagree with that, but the question of why judges have more power is an awfully good one. And agitation for change has in many cases shifted its focus from lobbying the legislature to either lobbying the regulators or filing lawsuits. It's cheaper and faster, to put it bluntly.
Comments:
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Interesting observations.
I started to leave a comment but it got too long, so I blogged about it instead.
http://hootsbuddy.blogspot.com/2005/05/business-as-usual.html
I started to leave a comment but it got too long, so I blogged about it instead.
http://hootsbuddy.blogspot.com/2005/05/business-as-usual.html
A couple of comments. I like your last blurb about how the lobbying is now done in part in the judiciary instead of the the legislators. This is very insightful of you and somewhat true. I know from my time working with the Tulane Environmental Law Clinic and the associated environmental citizens groups, this is true. In Louisiana, the citizen groups have no chance of out lobbying the industry groups. The poor minority communities we represented could never match the money poured on by industry. The only recourse we had was by suing over the law itself. many times, when a factory was found to be in violation of a clean air or clean water law, they just lobbied the State to change the law, and the State almost always did.
Without the courts, citizens are shut out of the process all together.
On another note - you mentioned that the judiciary is much stronger now than it was 200 years ago. Yes, it is, but so are the other two branches. If you read the full Federalists papers, one of their major concerns was that the constitutional provisions for the president would make him too weak to check the legislature. now the president is arguably the strongest of the 3 branches. Additionally, the federal government was not nearly as integrated into states at the time. The civil war amendments were obviously not enacted then. As the dynamic of the government as a whole changes, so must the respective branches. The commerce clause was rarely used prior to the 1930's-40's and then exploded. As the power of the president and the legislature increases, so must the power of the courts. You would not want to have 1805 courts around today.
Without the courts, citizens are shut out of the process all together.
On another note - you mentioned that the judiciary is much stronger now than it was 200 years ago. Yes, it is, but so are the other two branches. If you read the full Federalists papers, one of their major concerns was that the constitutional provisions for the president would make him too weak to check the legislature. now the president is arguably the strongest of the 3 branches. Additionally, the federal government was not nearly as integrated into states at the time. The civil war amendments were obviously not enacted then. As the dynamic of the government as a whole changes, so must the respective branches. The commerce clause was rarely used prior to the 1930's-40's and then exploded. As the power of the president and the legislature increases, so must the power of the courts. You would not want to have 1805 courts around today.
Dingo - correct about 1805 courts. Congress itself has harnessed this aspect of our system when it has passed enabling legislation for private suits. (Examples are the ADA and Superfund.)
What concerns me overall is that I believe the power of the legislature has effectively decreased while the power of both the executive and the presidency have grown. This is undemocratic in several ways.
First, because the legislature is a rolling body, always worrying about the next election, it should be more concerned about public opinion AND it should be the most democratic and widely representative part of our government. Let's face it, a president in his second term and a judge do not have the same incentives. I believe the founders deliberately designed in those incentives - I know that was the reason for the two houses with different terms.
The second is that an issue in a court is necessarily presented in a focused manner. The debate and consideration simply cannot be as wide-ranging as they are in a legislative body. This makes a court a very bad place to decide certain issues which are complex and experimental.
I will go back to my TennCare example. Tennessee's system for providing medical coverage to its lower-income residents is collapsing, and one of the big reasons for that is that individuals keep suing for more coverage. Because the court is set up to look at the defendent's point narrowly, the court cannot effectively examine the net effect of its actions on the entire state and the entire program.
I would not want to emasculate the courts, but they can't be an effective place to decide certain issues. You can't design a workable medical coverage system in a patchwork fashion, and that is all the courts can provide. You can't get the balancing and constant adjustments needed to provide and maintain such a public facility from a court system.
Furthermore, once one or two such successful suits have succeeded, it is inevitable that the focus will shift from the legislature to the courts. But by not even lobbying the legislature, the public debate is further crippled. The extensive nature of court interference in such areas is really doing great harm. It is not the fault of any individual within the system - it is the result of applying "rights" precedents.
I am afraid we are really headed for a train wreck. The majority interest is the interest that a state or federal legislature must uphold for society to function well. But our courts are really only set up under the current precedents to sustain individual interests. There is an obvious problem with the extensive powers of the judiciary right now.
What concerns me overall is that I believe the power of the legislature has effectively decreased while the power of both the executive and the presidency have grown. This is undemocratic in several ways.
First, because the legislature is a rolling body, always worrying about the next election, it should be more concerned about public opinion AND it should be the most democratic and widely representative part of our government. Let's face it, a president in his second term and a judge do not have the same incentives. I believe the founders deliberately designed in those incentives - I know that was the reason for the two houses with different terms.
The second is that an issue in a court is necessarily presented in a focused manner. The debate and consideration simply cannot be as wide-ranging as they are in a legislative body. This makes a court a very bad place to decide certain issues which are complex and experimental.
I will go back to my TennCare example. Tennessee's system for providing medical coverage to its lower-income residents is collapsing, and one of the big reasons for that is that individuals keep suing for more coverage. Because the court is set up to look at the defendent's point narrowly, the court cannot effectively examine the net effect of its actions on the entire state and the entire program.
I would not want to emasculate the courts, but they can't be an effective place to decide certain issues. You can't design a workable medical coverage system in a patchwork fashion, and that is all the courts can provide. You can't get the balancing and constant adjustments needed to provide and maintain such a public facility from a court system.
Furthermore, once one or two such successful suits have succeeded, it is inevitable that the focus will shift from the legislature to the courts. But by not even lobbying the legislature, the public debate is further crippled. The extensive nature of court interference in such areas is really doing great harm. It is not the fault of any individual within the system - it is the result of applying "rights" precedents.
I am afraid we are really headed for a train wreck. The majority interest is the interest that a state or federal legislature must uphold for society to function well. But our courts are really only set up under the current precedents to sustain individual interests. There is an obvious problem with the extensive powers of the judiciary right now.
I agree somewhat with you and disagree somewhat.
The house was set up to be the 'will of the people', but not the Senate. That was set up to be a roadblock to the will of the people (thus the appointment of Senators, not direct election and per sterpies, not per capita).
"Because the court is set up to look at the defendent's point narrowly, the court cannot effectively examine the net effect of its actions on the entire state and the entire program."
This goes to prove my point that the judiciary is not being activist. An 'activist judge' would be concerned with the effect of their actions on the entire program. A judge ruling narrowly is considering the law as it applies to that individual case as they should. Most of the time, it is the law that needs to be changed, not the judge (eg. Schiavo).
"You can't design a workable medical coverage system in a patchwork fashion, and that is all the courts can provide."
Once again, if the legislators can't do it properly, the judges have no other options but to make these rulings. If the legislators don't want to create a workable medical coverage system, the result is patchwork.
I have a question for you. If the essence of democracy is liberty and these judges are expanding rights, not restricting them, how can they be considered an oligarchy? If the will of the people is to constrict rights (e.g. gay marriage) doesn't that go against liberty thus making the will of the people wrong?
The fundamental difference I see in the issue is that the judges, more often than not (and for better or worse) are expanding rights and liberty. If they were constricting rights instead of expanding them, I would then agree with you that there is judicial tyranny.
The house was set up to be the 'will of the people', but not the Senate. That was set up to be a roadblock to the will of the people (thus the appointment of Senators, not direct election and per sterpies, not per capita).
"Because the court is set up to look at the defendent's point narrowly, the court cannot effectively examine the net effect of its actions on the entire state and the entire program."
This goes to prove my point that the judiciary is not being activist. An 'activist judge' would be concerned with the effect of their actions on the entire program. A judge ruling narrowly is considering the law as it applies to that individual case as they should. Most of the time, it is the law that needs to be changed, not the judge (eg. Schiavo).
"You can't design a workable medical coverage system in a patchwork fashion, and that is all the courts can provide."
Once again, if the legislators can't do it properly, the judges have no other options but to make these rulings. If the legislators don't want to create a workable medical coverage system, the result is patchwork.
I have a question for you. If the essence of democracy is liberty and these judges are expanding rights, not restricting them, how can they be considered an oligarchy? If the will of the people is to constrict rights (e.g. gay marriage) doesn't that go against liberty thus making the will of the people wrong?
The fundamental difference I see in the issue is that the judges, more often than not (and for better or worse) are expanding rights and liberty. If they were constricting rights instead of expanding them, I would then agree with you that there is judicial tyranny.
Dingo, the problem with your thesis is that no public facility can be all-inclusive. That's the problem of a "rights" society.
You are right about a judge's job. But no program ever fashioned can meet such a test. These programs are experimental when they are set up.
A body of precedent and reading of the law that evolved to deal with denial of civil rights to vote, etc, can not be safely applied to such programs. The precedents are skewed. And when the court evolved its latest set of definitions, it did not understand fully what it was doing.
Nothing in the background of a judge fits that person to make such decisions. It is like giving a doctor a truckful of iron ore and a steel works and telling him to go build a bridge over a river. You would not want to have to rely on that bridge to get to the hospital.
When you "expand" individual rights to civil economic institutions, to some degree you are restricting everyone else's rights. You create the Malthusian problem of the commons by limiting the ability of the people to agree upon restrictions of individual use of the commons.
When that happens, in the end, the only recourse a society has is to restrict the commons to protect itself. That is not the outcome we want. This is what people mean when they talk about activist judges. Basically, they mean stupid judges. Because this is a form of stupidity, of not knowing their own limitations.
Judges simply don't have the background to understand how socio-economic institutions form. They are anarchically efficient self-organizing entities. Tinker with what you don't understand and you can easily destroy it.
We will have to pass another constitutional amendment to protect the balance of powers at this rate. I don't approve of a federal marriage amendment - I would prefer to see the states experiment and a consensus emerge - but I do think we will have to curb the federal judicial scope very quickly.
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You are right about a judge's job. But no program ever fashioned can meet such a test. These programs are experimental when they are set up.
A body of precedent and reading of the law that evolved to deal with denial of civil rights to vote, etc, can not be safely applied to such programs. The precedents are skewed. And when the court evolved its latest set of definitions, it did not understand fully what it was doing.
Nothing in the background of a judge fits that person to make such decisions. It is like giving a doctor a truckful of iron ore and a steel works and telling him to go build a bridge over a river. You would not want to have to rely on that bridge to get to the hospital.
When you "expand" individual rights to civil economic institutions, to some degree you are restricting everyone else's rights. You create the Malthusian problem of the commons by limiting the ability of the people to agree upon restrictions of individual use of the commons.
When that happens, in the end, the only recourse a society has is to restrict the commons to protect itself. That is not the outcome we want. This is what people mean when they talk about activist judges. Basically, they mean stupid judges. Because this is a form of stupidity, of not knowing their own limitations.
Judges simply don't have the background to understand how socio-economic institutions form. They are anarchically efficient self-organizing entities. Tinker with what you don't understand and you can easily destroy it.
We will have to pass another constitutional amendment to protect the balance of powers at this rate. I don't approve of a federal marriage amendment - I would prefer to see the states experiment and a consensus emerge - but I do think we will have to curb the federal judicial scope very quickly.
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