Although most conservatives (and libertarians) seem to have celebrated the recent gun rights victories in McDonald v. Chicago and D.C. v. Heller, there is still a lesser-known minority within this camp that is not so enthusiastic. They claim that because the Fourteenth Amendment was originally designed to protect former slaves by law in a rather limited way, rather than turn into an end-all be-all way to strike down state laws you don't like, it is a bad idea to use the Fourteenth Amendment for lots of other issues. Their arguments (detailed below) do make some sense, but I still am not a total skeptic.
For those who aren't aware, the part of the 14th Amendment that some conservatives, libertarians and constitutionalists take issue with is called the "Incorporation Doctrine." Basically, incorporation means that the Bill of Rights applies to the states. As many experts have already explained (and I, sadly, discovered), the Bill of Rights did not originally apply to the states. The Bill of Rights originally was designed as a check by states on federal power; in other words, the B.O.R. was meant to protect states from federal encroachment. Others have explained how, even though the B.O.R. did not originally apply to the states, state constitutions tend to be rather comprehensive in their descriptions of what natural rights residents have. According to many constitutionalists, this makes applying the B.O.R. to the states (or at least did in 1789).
Western Connecticut State University History Professor Kevin Gutzman is one current proponent of the anti-incorporation view. He authored The Politically Incorrect Guide to the Constitution, among other works. In personal exchanges I have had with him on Facebook recently, whenever I asked him about the Fourteenth Amendment, he usually referred to Former Harvard Law Professor Raoul Berger's 1975 title Government by Judiciary: The Transformation of the Fourteenth Amendment. From what I've heard, Berger has certainly done his research. While I'm sure this book presents an excellent case for why the Fourteenth Amendment was not originally intended to be used as it is now, I'm still not entirely convinced that we should use a minimalist approach.
Gutzman also uses the argument that, if we use the Fourteenth Amendment as a reason to overturn what we see as bad state laws that infringe on liberty, that can be eventually used against us to take away liberty, expand government or to enshrine new rights the Founders would never have dreamed of, such as a right to free healthcare or housing. While I understand this concern, I'm just not so sure it's that valid today. After all, today's Roberts court has been described by many liberals as pretty activist (in a conservative way). Why the court today or in the near future would use the Fourteenth Amendment to add a whole bunch of fictional rights like a "Second New Deal" is beyond me. I don't mean to insult Gutzman or his character, but his approach seems a little wimpy.
After all, without incorporation, can any of us imagine all the ridiculous laws that would still be on the books? We might not even be able to buy contraception in certain states, or get married to folks of other races! With any judicial approach, there are pluses and minuses. The key is to make sure the court minimizes the minuses and expands the pluses. Plus, who knows how long it would have taken states to repeal silly laws like anti-sodomy statutes if Lawrence v. Texas had never been a case. I think Gutzman's concern is a risk we must take in order to defend liberty across this great nation. No one ever said a "right" to free healthcare couldn't be overturned by Congress and the president, did they?
A pro-incorporation approach may seem like a "big government" way to deal with the Supreme Court, but I think it's the best we've got. After all, why should states be exempt from the Bill of Rights? I'm all about maximizing individual freedom (within reason), so I see no reason why the B.O.R. should not apply to the states, at least in principle. If a state is violating someone's inalienable rights, and he can't get the law overturned by the legislature or state Supreme Court, why not allow him that final outlet with the federal court process? A good number of chances to earn your freedom from tyrannical governments to me seems pretty damn reasonable. If someone can't use the state government to get rid of a tyrannical law that violates the B.O.R., under Gutzman's philosophy, he's pretty much screwed!
Showing posts with label federal courts. Show all posts
Showing posts with label federal courts. Show all posts
Sunday, August 8, 2010
Wednesday, August 4, 2010
Judicial Minimalism Or Activism? How 'Bout a Little of Both?
I always dread the process of selecting and confirming new justices for the Supreme Court. It's such an emotional and ideological battle. The Left wants liberal, activist judges, and the Right wants so-called originalists. And anytime a justice rules against someone's core political beliefs, that individual almost always refers to it as "judicial activism" in a weird attempt to sound "smart" rather than admitting that they only want their values to be "constitutional." It kind of makes me sick to my stomach.
Liberals tend to believe in a more living, evolving Constitution. They argue that because times change, and values obviously change with them, constitutional interpretation should fit these changes. On the other hand, conservatives tend to believe that the Constitution is a dead document, that the only legit way to add new language or federal powers is through a constitutional amendment. They argue that loose constructionism means that the courts could give the other two branches of government practically unlimited power. Few people want the government to have the power to do anything it wants.
However, in my view, both interpretations have shortcomings. An evolving Constitution can allow justices to give the other two branches some new powers that were not originally explicitly defined in the Constitution, but so many cases today before the Court have to do with things that were not even issues 200 years ago. How can we know for sure what the Founders' original intent was? Is something "unconstitutional" simply because it is not mentioned in the Constitution? The world of the Founders was much different than today's. On the other hand, originalists do have some reason to be suspicious, as an evolving view of the Constitution could give the federal government several new powers that could infringe on our rights as Americans.
I also have some misgivings about recent court cases, such as Lawrence v. Texas, that involve state infringements on the civil liberties of individuals, possibly being interpreted in an "originalist" manner. I thank God they weren't, thanks to the 14th Amendment, but would it make sense to claim that "sodomy is unconstitutional"? Is not the Constitution designed to restrict the power of government? How can one turn it on its head to restrict the powers and liberties of individuals and give more power to the government? That is tyranny, if you ask me. Do not conservatives constantly claim they believe that we are born with our inalienable rights? That government does not grant rights?
So what is the solution? Well, I would call it "moderate construction." Basically, when the case involves something that is explicitly defined or mentioned in the Constitution, originalism is probably the way to go. But when it involves an issue that was not even mentioned 200 years ago and has no reference at all in the Constitution, courts should tread carefully but they do have some right to be a little flexible with interpretations. That seems to me to be a fairly reasonable compromise.
After all, the Constitution did not even grant the Supreme Court or lower federal courts the ability or oblige them to use judicial review. The federal court system was specified years after the Constitution was ratified, and the few constitutional clauses dealing with the federal court system are quite vague. The first judicial review case that set the precedent did not even happen until decades after the Constitution became the law of the land.
The Left and the Right both need to quit it with this absolutist nonsense regarding constitutional law. I've never cared much for absolutism, as it seems that, more times than none, the truth is somewhere in the middle. Both sides of the aisle do a great disservice to the political discussion and America in general when they oversimplify constitutional interpretation or say that only one type is correct all the time. Judicial interpretation should be done on a case-by-case basis. Judging is quite difficult, and we make a mockery of the process when we tell justices (or prospective ones) that they must adhere to one style or the other in every single case.
Liberals tend to believe in a more living, evolving Constitution. They argue that because times change, and values obviously change with them, constitutional interpretation should fit these changes. On the other hand, conservatives tend to believe that the Constitution is a dead document, that the only legit way to add new language or federal powers is through a constitutional amendment. They argue that loose constructionism means that the courts could give the other two branches of government practically unlimited power. Few people want the government to have the power to do anything it wants.
However, in my view, both interpretations have shortcomings. An evolving Constitution can allow justices to give the other two branches some new powers that were not originally explicitly defined in the Constitution, but so many cases today before the Court have to do with things that were not even issues 200 years ago. How can we know for sure what the Founders' original intent was? Is something "unconstitutional" simply because it is not mentioned in the Constitution? The world of the Founders was much different than today's. On the other hand, originalists do have some reason to be suspicious, as an evolving view of the Constitution could give the federal government several new powers that could infringe on our rights as Americans.
I also have some misgivings about recent court cases, such as Lawrence v. Texas, that involve state infringements on the civil liberties of individuals, possibly being interpreted in an "originalist" manner. I thank God they weren't, thanks to the 14th Amendment, but would it make sense to claim that "sodomy is unconstitutional"? Is not the Constitution designed to restrict the power of government? How can one turn it on its head to restrict the powers and liberties of individuals and give more power to the government? That is tyranny, if you ask me. Do not conservatives constantly claim they believe that we are born with our inalienable rights? That government does not grant rights?
So what is the solution? Well, I would call it "moderate construction." Basically, when the case involves something that is explicitly defined or mentioned in the Constitution, originalism is probably the way to go. But when it involves an issue that was not even mentioned 200 years ago and has no reference at all in the Constitution, courts should tread carefully but they do have some right to be a little flexible with interpretations. That seems to me to be a fairly reasonable compromise.
After all, the Constitution did not even grant the Supreme Court or lower federal courts the ability or oblige them to use judicial review. The federal court system was specified years after the Constitution was ratified, and the few constitutional clauses dealing with the federal court system are quite vague. The first judicial review case that set the precedent did not even happen until decades after the Constitution became the law of the land.
The Left and the Right both need to quit it with this absolutist nonsense regarding constitutional law. I've never cared much for absolutism, as it seems that, more times than none, the truth is somewhere in the middle. Both sides of the aisle do a great disservice to the political discussion and America in general when they oversimplify constitutional interpretation or say that only one type is correct all the time. Judicial interpretation should be done on a case-by-case basis. Judging is quite difficult, and we make a mockery of the process when we tell justices (or prospective ones) that they must adhere to one style or the other in every single case.
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