MaxedOutMama
Wednesday, July 27, 2005
The Crux Of The Argument
Carl at No Oil For Pacifists has done a superb job of summarizing the issues involved in an activist judiciary that is inclined to set its own interpretation of the Constitution above the very words of the Constitution itself.
Now Sigmund, Carl and Alfred present a more philosophical view of the way our system was designed to work:
There is a fundamental decency and moderation to this scheme of human social life. If we debate honestly and openly, our differing arguments and positions enrich rather than devaluing each other. Points of agreement become the basis for shared action. Both our victories and our losses are partial and contingent in nature, because all of must subject not our consciences, but our activities, to the judgement of the public. And because the public's judgement is formed on the basis of both idealism and practical results, foolishness and excess has a natural tendency to correct itself.
However, if we short-circuit this correction mechanism by shifting more and more power to the judiciary, our public dialogue will naturally tend to absolutist positions and more extreme polarization. Each judical appointment becomes a victory for one side or another that will extend for decades into the future. Under this system, both our losses and our victories are far less pinned to practical results and are not subject to the public's correction.
The first system of government is like a person driving down the road making small corrections in steering as the road itself curves to the right or the left. The second is like a person putting on makeup while staring in the mirror, and only occasionally making corrections in steering as the person glances at the road. Necessarily, those correction will be more significant each time. It's not a safe way to drive or govern.
Now Sigmund, Carl and Alfred present a more philosophical view of the way our system was designed to work:
To disagree is not to be intolerant. To wave off or dismiss those with differing views is intolerant. It is a sad day when we dismiss those for being different from us. It is even a sadder day when civil discourse is eschewed, because one side or the other characterizes the other as 'less than' or 'evil,' etc.The virtue of the basic system established within our Constitution is that it recognizes that each individual has a right both to follow his or her conscience and to speak and be politically active with regard to those dictates. The only limiting factor is that I can't elevate the dictates of my conscience over the dictates of yours. If the general population accepts part or all of my arguments, law and/or social mores may evolve to my satisfaction. If the general population accepts part or all of your arguments, law and/or social mores may evolve to your satisfaction. But general public debate and conviction are necessary for either of us to win the day, and in most cases, any such victory will be partial.
A wise man once shrewdly observed that at times, we shared very different views than our grandparents. Somehow, we never saw our grandparents as 'evil.' The point was well taken. People can have different views and ideas and not be less than, or 'evil.' With time, we have even found that some of our views, ones we thought inviolate, have been modified. Maybe there was some wisdom there, after all.
All too often, we find ourselves in environments and social milieus that reinforce certain points of view. Sometimes, those environments and relationships make it very difficult to grow and evolve. We may come to understand nuance more clearly or realize that simplistic ideologies and slogans do not fully address an issue. Nevertheless, because we have constructed for ourselves these bullet-proof and cloistered environments, we cannot adapt and evolve without fear of losing our status and relationships within our group.
There is a fundamental decency and moderation to this scheme of human social life. If we debate honestly and openly, our differing arguments and positions enrich rather than devaluing each other. Points of agreement become the basis for shared action. Both our victories and our losses are partial and contingent in nature, because all of must subject not our consciences, but our activities, to the judgement of the public. And because the public's judgement is formed on the basis of both idealism and practical results, foolishness and excess has a natural tendency to correct itself.
However, if we short-circuit this correction mechanism by shifting more and more power to the judiciary, our public dialogue will naturally tend to absolutist positions and more extreme polarization. Each judical appointment becomes a victory for one side or another that will extend for decades into the future. Under this system, both our losses and our victories are far less pinned to practical results and are not subject to the public's correction.
The first system of government is like a person driving down the road making small corrections in steering as the road itself curves to the right or the left. The second is like a person putting on makeup while staring in the mirror, and only occasionally making corrections in steering as the person glances at the road. Necessarily, those correction will be more significant each time. It's not a safe way to drive or govern.
Comments:
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Boomr - yes, it is quite fair to say that judges must interpret the law. I can't imagine a workable system in which they did not have to do that.
The argument is how far they will go in doing that, and I am well aware that argument will never be totally and completely settled.
As to the point about birth control, if the Constitution is silent on the issue than surely it is acceptable to for a judge to rule that the Constitution has not authoritatively spoken!
Mind you, I don't believe it is rational for the law to forbid the use of birth control just as I don't agree that it is rational for the law to force its use. But must we treat the Constitution like a sacred text, and pretend that in its current forms it provides all possible answers to such questions? I think that is irrational in the extreme.
If we hold as a maxim that the Constitution has already provided an answer to all such dilemmas, we do produce a system in which the wild contest for the judiciary produces excess. I suppose it is a logical excess, but it is still excess.
And if you look at recent issues involving this degree of interpretation, I think we can see the problem on both the right and the left. Making or assuming that the court should assume such a huge role is bound to cause insecurity on all camps.
Furthermore, we are feeding both the extreme right and the extreme left while starving moderates. Boomr, the idea of having layers of control and an evolving society probably will not survive some layer of top-level control.
The argument is how far they will go in doing that, and I am well aware that argument will never be totally and completely settled.
As to the point about birth control, if the Constitution is silent on the issue than surely it is acceptable to for a judge to rule that the Constitution has not authoritatively spoken!
Mind you, I don't believe it is rational for the law to forbid the use of birth control just as I don't agree that it is rational for the law to force its use. But must we treat the Constitution like a sacred text, and pretend that in its current forms it provides all possible answers to such questions? I think that is irrational in the extreme.
If we hold as a maxim that the Constitution has already provided an answer to all such dilemmas, we do produce a system in which the wild contest for the judiciary produces excess. I suppose it is a logical excess, but it is still excess.
And if you look at recent issues involving this degree of interpretation, I think we can see the problem on both the right and the left. Making or assuming that the court should assume such a huge role is bound to cause insecurity on all camps.
Furthermore, we are feeding both the extreme right and the extreme left while starving moderates. Boomr, the idea of having layers of control and an evolving society probably will not survive some layer of top-level control.
An excellent point boomr.
but to continue the analogy at some point it ceases to be "gap filling" and starts to be "resurfacing".
the example that comes to mind is the redistricting here in Texas that got so much attention a while back. The lines are supposedly drawn by the legislature every 10 years but until the recent flap the last 2 had been drawn by the courts and the courts had held that the legislature could not redraw them because they had already been drawn (by the courts) for that 10 year span. In my opinion the initial mistake was the courts drawing the lines in the first place instead of tossing it back to the legislature as a do over because the last attempt was not acceptable for whatever reason.
We have also had a school district case here (the current law is for failing school districts to fall back to state control) where a school was defaulted back to the state but a judge denied the legislatures plan to implement his own plan to improve the school. He was overturned at a higher court, but I think the fact that he thought his actions should be acceptable are symptoms of a problem.
I also know those are only two small examples. But to me at least they are troubling.
but to continue the analogy at some point it ceases to be "gap filling" and starts to be "resurfacing".
the example that comes to mind is the redistricting here in Texas that got so much attention a while back. The lines are supposedly drawn by the legislature every 10 years but until the recent flap the last 2 had been drawn by the courts and the courts had held that the legislature could not redraw them because they had already been drawn (by the courts) for that 10 year span. In my opinion the initial mistake was the courts drawing the lines in the first place instead of tossing it back to the legislature as a do over because the last attempt was not acceptable for whatever reason.
We have also had a school district case here (the current law is for failing school districts to fall back to state control) where a school was defaulted back to the state but a judge denied the legislatures plan to implement his own plan to improve the school. He was overturned at a higher court, but I think the fact that he thought his actions should be acceptable are symptoms of a problem.
I also know those are only two small examples. But to me at least they are troubling.
# posted by 
: 1:26 PM
: 1:26 PM
To some degree your analogy holds true for me. However, when the judges start rebuilding the bookcase I shake my head in horror.
The bookcase is indeed designed to be modular, but it is the people who are intended to be able to reshape its fundamental form - not the judges.
I do think that in some cases the judges have rebuilt the Constitution. I think we have gone too far. I think it would be far better if these difficulties were fought out politically.
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The bookcase is indeed designed to be modular, but it is the people who are intended to be able to reshape its fundamental form - not the judges.
I do think that in some cases the judges have rebuilt the Constitution. I think we have gone too far. I think it would be far better if these difficulties were fought out politically.
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