Something that gets forgotten when people talk about ‘judicial activism’ is that judges are all that stand between us and executive activism
Excellent point, though I do not see how this makes judges remaking the law based on their own policy preferences better than the executive doing it. Indeed, it's worse because the executive does not have life tenure.
Shouldn't we agree that all three branches should follow the law as it is, rather than as they would have it be?
all three branches
Well, the legislature does get to determine, within limits, what they would have the law be. That's their job. So, two, rather than three, branches.
Excellent point, though I do not see how this makes judges remaking the law based on their own policy preferences better than the executive doing it.
Luckily, I'm not talking about that. I'm talking about a case in which a judge enforced the law as written. My point is that both the judiciary and the executive have the capacity to illegitimately shape the law in accordance with their policy preferences; the executive a lot more so, in that they can act directly rather than merely deciding cases brought before them. When the executive acts illegitimately in that fashion, there is nowhere to turn other than the judiciary.
US District Judge Thomas Marten
I've never been real clear on this, perhaps one of you legal-eagle types will enlighten me. If this is a Kansas law, and it is not being challenged as unconstitutional under the federal Constitution, how come it is tried in a US District court rather than a state court? I mean the ruling is clearly on the intention of the state legislature.
Well, the legislature does get to determine, within limits, what they would have the law be. That's their job. So, two, rather than three, branches.
Not entirely true. The legislative branch is still constrained by the Constitution; it cannot do whatever it wants.
When the executive acts illegitimately in that fashion, there is nowhere to turn other than the judiciary.
This is 100 percent right. My point is that fans of judicial activism (a subject you brought up) should remember that when the judicary acts illegitimately, there is nowhere to turn.
I'll get that Federalist Society membership application to you right away.
I haven't read the case Kid, but the most likely reason is diversity, meaning a party not of a state, like the provider, is entitled to have a case removed to federal court to ensure fairness, even though the state law will still be used. Basic constitutional right.
when the judicary acts illegitimately, there is nowhere to turn.
You are forgetting the ultimate authority in a democracy, viz. an armed populace. Let the streets run red with blood say I! Before another judge deems women's health issues constitutionally protected!
judges remaking the law based on their own policy preferences
Idealist, I will pay you well over $1 if you tell me the location of the magic parsing machine that makes clear what the law says and makes unnecessary, as far as I can see, lawyers and judges.
fans of judicial activism
I don't think there are any. As far as I can tell everyone uses the phrase "judicial activism" to mean "decisions I don't like."
how come it is tried in a US District court rather than a state court
A Federal court has jurisdiction over a claim that a state law is unconstitutional, and for a variety of reasons people tend to bring Federal constitutional challenges in Federal court. That said, it likely could have been brought in State court.
Generally, when people talk about judicial activism, they mean "judges interpreting the law in a way I don't like". I expect Phil Kline will shortly be complaining about judicial activism. (actually, he already is, per google) However, he also says "Who has the discretion? We have prosecutorial discretion. We, generally, do not prosecute, truly consensual, same age children engaging in what was a mistake. Love the "generally". So as an alternative to "judicial activism" he offers selective enforcement. I'm glad we won't be seeing how that plays out.
10 -- But my point was that the law was not being challenged -- it was the executive's interpretation of the law. This doesn't entail any research into the constitutionality of the law, does it? But the answer in 5 works prettty well for me.
This is 100 percent right. My point is that fans of judicial activism (a subject you brought up) should remember that when the judicary acts illegitimately, there is nowhere to turn.
Not so. If the courts rule a law unconstitutional, Congress can pass new ones. And the Congress and the states can act together to amend the Constitution, if need be. Also there are procedures for removing judges who truly act in illegitemate fashion (e.g., making rulings which are clearly not based on sound legal reasoning.)
And is anyone really a fan of judicial activism?
(On preview, I see these points have been made by others, but I took the time to type this, so I'm posting in anyway. So there.)
Idealist, I will pay you well over $1 if you tell me the location of the magic parsing machine that makes clear what the law says and makes unnecessary, as far as I can see, lawyers and judges.
This really has nothing to do with judges substituting their own preferences for what the law says. It proves too much to argue that everything is open to interpretation. Like saying that there is no truth and that we can never really know anything. All very interesting, but we have to get on with life. And in real life, there are judges who substitute their preferences for what the law (or the constitution) says.
Generally, when people talk about judicial activism, they mean "judges interpreting the law in a way I don't like".
Generally, this is what people who favor judges substituting their policy preferences say to justify it. Except when they do not like the outcome.
14: Exactly. Judges can be impeached. Admittedly, they rarely are, but it is a check and a mythbuster on this "judicial activism" clamor.
Generally, this is what people who favor judges substituting their policy preferences say to justify it. Except when they do not like the outcome.
Idealist, if you're going to talk about judicial activism please come up with a substantial example of this, where you can argue that what's going on is just substitution of policy preferences and not someone applying a theory of legal interpretation that you happen to disagree with.
Since you mentioned the Federalist Society, you might also want to explain why either a) Bush v. Gore and the Rehnquist Court's Eleventh Amendment cases aren't judicial activism or b) the Federalist Society has condemnded them.
This really has nothing to do with judges substituting their own preferences for what the law says. It proves too much to argue that everything is open to interpretation.
What it proves is that there's no practical way to set up a system that removes the possibility of 'judicial activism' (probably better described as 'judges getting it wrong'). Is it a good thing? No. Does it happen? Yes, sometimes. Is there any way to eliminate it from the system completely? No. Is the best way to address it to point out particular decisions one disagrees with and discuss how they are legally flawed, rather than generalizing madly about the system-wide problem? In my opinion, yes. (Have I suddenly been possessed by the astral body of Secretary Rumsfeld? Apparently, and disturbingly, so.)
It proves too much to argue that everything is open to interpretation. Like saying that there is no truth and that we can never really know anything. All very interesting, but we have to get on with life. And in real life, there are judges who substitute their preferences for what the law (or the constitution) says.
We don't have to say that everything is open; only that, within accepted boundaries, there remain a number of outcomes. Given two such outcomes, how do we recognize the proper one? What are we to make of the case in which two Federalist Society judges disagree? That one is acting in bad faith?
Have I suddenly been possessed by the astral body of Secretary Rumsfeld? Apparently, and disturbingly, so.
I regret to inform you that this is not unprecedented.
Anyway, what you said.
only that, within accepted boundaries, there remain a number of outcomes.
Obviously true. What of the decisions made outside accepted boundaries? At this point, we are back to the thread from a few weeks ago about judges treating tobacco companies differently.
'judges getting it wrong'
As long as we can agree that judges substituting their policy preferences for what the law is equals judges getting it wrong we are in agreement and, if we could get everyone to agree, we will have done all that is practically doable.
Sure thing. We would also have to agree that this happens with judges of all political persuasions (see Weiner's 18) and would probably still have an area of disagreement on specifics over when it's happening. But the basic principle is unexceptionable.
Idealist, I think the problem is this: You talk about "fans of judicial activism." But no one is going to say "I'm a fan of judicial activism!!1!1!" By definition, that's a fan of getting it wrong. So if your criticism is to have any bite, you have to use "activism" de re and not de dicto; that is, you have to say "fans of X, where X is judicial activism." And (except now, with the tobacco cases) you haven't even told us what X is, let alone explained why it's judicial activism.
Sometimes "judicial activism" seems to be used to mean "expansive reading of the constitution." But, for the reasons given in 19 and 20, this requires argument that the readings are too expansive. And Scalia, who likes to huff and puff about how he is a passive instrument of the law, is not averse to an expansive reading when it suits him (again, Bush v. Gore and the Eleventh Amendment cases -- if I'm right about how he votes on them).
20: SCMT, that sounds vaguely Dworkinian. I have to admit, though, that I have never fully grasped his view of legal interpretation as an exercise in perfecting the best meaning of the text. Can any of the literary types here explain it to me?
We would also have to agree that this happens with judges of all political persuasions . . . and would probably still have an area of disagreement on specifics over when it's happening. But the basic principle is unexceptionable.
Of course. But now we have to find something else to argue about. How about: Keanu Reeves--a great actor.
Certainly, if you like them pretty and stupid.
But now we have to find something else to argue about
...Only if you are going to ignore Weiner's 25 and previous.
if you like them pretty and stupid
I like them pretty and smart, but I thought we were talking about the movies. Bill and Ted's Excellent Adventure, Point Break, the Matrix--modern classics all.
Matt, I can think of at least one explicit case of judicial activisim, and believe I may have read others. The one I'm thinking of was the Priscilla Owen's decision, in which she explicitly acknowledged that her rulign was not in accordance with the law.
While you're not likely to find people who are fans in general of judicial activisim, you will find some people who are support it in certain areas. Anti-choicers, for instance.
Bostyoniangirl
I've heard getting one's yoni bost is painful. Is this true?
Hey, Keanu has like, read all, or at least most, of La Recherche de Temps Perdu. I have to stick up for a fellow Proust fan.
Millionth reminder to myself to preview.... (btw, Here's lots on Owens, if you want a referesher.)
But now we have to find something else to argue aboutB...Only if you are going to ignore Weiner's 25 and previous.
Not really, I'm happy to say that "judicial activism" means "wrong decisions" (or maybe "some wrong decisions") and sign on to LB's 24.
Unfortunately for the argument, there is authoritative precedent on Keanu Reeves.
Let's not forget Parenthood.
What's everyone's favorite case of judicial activism? My favorite is an oldie but a goodie: Santa Clara County vs. Southern Pacific Railroad!
Yup, despite neither having a soul to damn nor a body to kick, corporations are full citizens of these here United States. That's just weird.
Well, they're not citizens but they are persons. I was one without being the other for many years and know the difference.
Whoops, you are right. But persons with a right to equal protection under the 14th amendment.
I have to say, aside from the "court reporter" and "secret journal" stuff (which I'm not sure I believe in all that detail based on wikipedia) the decision in Santa Clara doesn't strike me as clearly wrong. A could've gone either way kind of thing. IANA legal historian, of course.
Announcing "We're not going to hear arguments on this question" does seem high-handed under the circumstances.
Conkling worked pretty closely with railroad companies, Southern Pacific in particular. That said, I have no idea if the Wikipedia page is accurate. I may have a better idea in a few years, provided I stop commenting so much at Unfogged at some point.
In what way does a corporation seem like a person to you, in that it should be entitled to Constitutional rights comparable those of us who breathe? I mean, the injustice in saying that one class of human persons should be subject to more onerous laws than another is pretty clear -- saying that it is unjust that a legal fiction should be subject to more onerous laws than a human person seems less defensible.
But I really shouldn't get too into an argument over this, because IAAlsoNALegal Historian, and can't really back up my reaction.
BG, I'm afraid I don't know enough to give you even the beginning of an answer. I used to read Leiter's blog occasionally, and I think he really doesn't like Dworkin, so there might be an answer there.
Idealist, I remain unclear about, in the situation where there a number of outcomes within acceptable boundaries, what is guiding a judge's decision other than a series of preferences that look a lot like policy.
Also, you are wrong about Point Break. Other than that, I agree.
43: Not saying I think it's just, only that I think it might not have been crazy to read the laws that way.
In other words, I'm trying to earn fair-mindedness points by refusing to condemn as "judicial activism" a decision I might disagree with on policy grounds. And it costs me nothing. Nothing!
23: I'm not sure I agree, in the sense that in some limited set of difficult cases a judge is going to have to (and isn't wrong to) consult their own values in order to determine what the law is.
IANA legal historian
But I really shouldn't get too into an argument over this, because IAAlsoNALegal Historian
I'm afraid I don't know enough to give you even the beginning of an answer
I suggest, for shazam purposes, we all express strong opinions on matters we know absolutely nothing about, without caveat or qualification. A thread could be devoted to this, as an aesthetic experiment.
I know for a fact that that would be the worst thread in the history of the internet.
Also, ignoring whether or not Santa Clara was decided via reasoning based on true premises, it doesn't seem like it is such bad policy. I mean, if you object to the corporate form generally it's a problem, but otherwise it doesn't seem like such a big deal. One major place I would have had an issue with it, which would be holding that corporations constitutionally must be allowed to use the corporate treasury for campaign donations, hasn't happened.
Also, Keanu can't be redeemed by having acted poorly in a couple of good movies . While I agree that Point Break is, at least, fun, and Speed has numerous really good parts, look at all the crap he's been in. Also, his performance in Much Ado about nothing is hilariously bad.
IANAjudge, but I don't think the line between interpretation and ev0l activism!11! is all that clear. I mean, we appoint these judges because they're bright and can interpret the hard cases, right? What are they supposed to be guided by if not their own values and beliefs, when the law is unclear?
A strict, well-worked out legal philosophy à la Scalia? Please. I'll venture that his philosophy gets abandoned in a heart beat if it goes against his closer held beliefs.
And I imagine most of the pro-lifers screeching about evil judges would be ridiculously happy if the right to life were divined to be in the second amendment.
in the situation where there a number of outcomes within acceptable boundaries, what is guiding a judge's decision other than a series of preferences that look a lot like policy
For example, there are a number of rules for statutory interpretation, many of them having to do with analysis of the language of the statute itself. In general those rules do not get to the question of the judge's policy preferences. Indeed, most of the rules are explicitly policy neutral--what is the plain meaning of the words, is the act in question listed in the statue (or it it not listed when others are), are terms used in the statute defined elsewhere, etc.--and even when not strictly text-based, the inquiry is still not supposed to be on the judge. For example, in the (rare) case of a truly ambiguous statue, a judge can look to legislative intent. But they are not supposed to substitute their own preferences (e.g., tobacco companies suck and must be punished) for the legislature's.
I'm enough of a small "c" conservative to feel that a rule/understanding that's been in effect for a hundred years and is the basis of our commercial arrangements shouln't be undone regardless.
There's still enormous room for regulation by a Congress that meant business, and things like "corporate free speech" wouldn't last long if that day ever came.
I remember this piece on high politics vs. low politics as very enlightening. The things SCMT is talking about that look a lot like policy strike me as high politics; "tobacco companies suck" and "Bush/Cheney 00!" are low politics.
At least Keanu had the sense to stay away from Speed 2.
44: SCMT, I'm not familiar with Leiter's blog. What's the full title?
Leiter's Legal Philosophy archives.
Whether Keanu is good in a movie depends entirely on whether the casting agent was smoking crack. Entirely, I say!
55 was I. I am surprised that the comment went through, because I got the dreaded "Internal Server Error" message.
when the judicary acts illegitimately, there is nowhere to turn
Only in constitutional cases is this basically true. Also Sai Prakash and Steve Smith think you can remove a judge without impeaching him (or her), in a couple of different ways.
Now that I've reread the post linked in 53, I'd say something stronger. I think a lot of the time the things SCMT talks about aren't high or low politics, but the application of a judicial philosophy that perhaps is chosen for political reasons; but whose application may actually conflict with the judge's policy preferences. So when Thomas votes against the medical marijuana prohibition, it's not necessarily because he thinks it's good for marijuana to be legal, but because he's consistently applying his (IMO wrongheaded) views on federalism. The reading of equal protection in Bush v. Gore, not so much.
58 -- it's all the rage nowadays!
Leiter really really doesn't like Dworkin, to a degree that I would not rely on him for information about Dworkin.
It's obviously too late to undo Santa Clara.
What I object to is corporations being granted the rights and protections of natural persons, but having no appropriate penalty for violating the law like natural persons.
Example: If a natural person is proven to have killed someone because of reckless endangerment, jail time follows. Corporations though, found to be guilty of the same crime, pay a fine. These fines aren't a deterrent; they're looked on in many industries as the cost of doing business. What if there were more serious penalties? What if a corporation lost its corporate charter for such a thing? (Or whatever the equivalent would be for LLCs and LPs and the like.) What if recklessly endangering the public health meant losing your ability to do business? I'll bet companies would be a hell of a lot more careful.
I'm also waiting for the day when corporations are granted voting rights. Because why not? We're close to that already.
Brian Leiter: now there's a man not given to equivocation.
51: If you have a strict regimen in place that tells you where and when to apply construction rules, and how to validate the application, then, as far as I can tell, you have your magical parsing machine. There are no circs where two good faith judges should disagree. It's not clear that we need judges for interpretation at all.
If you lack such a regimen, it seems to me that you're back to the problem of deciding which ordered list of construction to apply. And the question remains how you are supposed to decide between them.
Or:
"In 1950, Karl Llewellyn wrote a famous article on statutory interpretation in which he showed that for every canon of statutory construction -- he listed 28 -- there was another canon stating just the opposite.4 For example, "A statute cannot go beyond its text", but at the same time, "To effect its purpose a statute may be implemented beyond its text." This kind of predicament, where two equally reasonable principles or laws are in opposition, is called an antimony. The law is full of antimonies. This is why Llewellyn was wont to say that for every legal issue there is not one, but several, correct answers."(Cite.)
63 -- but wouldn't revocation of a corporate charter be equivalent to the death penalty rather than to jail time? Maybe a better quivalent would be inability, for some legislated time, to engage in financial transactions -- I think this would be the corporate equivalent of the loss of freedom of movement which jail is for people. (I'd rather see "jail time for the board of directors" but that wouldn't necessarily be just.)
Also, if corporations are granted voting rights will that apply as well to S-corporations? Sounds like a good way to double my vote!
Karl Llewellyn has an article on canons and counter-canons? Who knew?
B-girl, there was also a post at the Valve on intent and interpretation, which I'm not sure I ever followed and could not explain now.
(how's that for qualified sentences, ac?)
I endorse 63 and add that in the case of reckless endangerment, all the employees of a given corporation should be put in jail. Since the usual argument in favor of "corporation = person" is "corporations are made up of people!"
On those grounds, we should also charge fetuses who impair their mothers' health, ability to work, etc., when the fine day comes that fetuses become legal persons.
Correct me if this is obviously naive, but if a corporation lost its corporate charter, what would stop the owners and employees from forming a new corporation that looked an awful lot like the old one, did the same business, and performed the same functions?
We'd have a cool Lockean intransitivity of personhood problem, but I'm not seeing how a corporate 'death penalty' would mean much except rebranding.
I endorse 63 and add that in the case of reckless endangerment, all the employees of a given corporation should be put in jail.
...So in addition to being recklessly endangered, they have to do hard time? That hardly seems fair.
Me, I'd like to see a little judicial activism on the corporation-as-person front, particularly with regard to creative sentencing. Just start pouring concrete and stringing barbed wire around the malefactor's headquarters shortly before lunch and put the whole damn company in jail. The whole person is guilty, right? May not stand, but it should do wonders for the debate.
Cala -- I think my idea of sequestering the corporation's assets for the period of the penalty is a good solution to 72.
We'd have a cool Lockean intransitivity of personhood problem
This reminds me of my proposed solution to the California budget problem, which was simply to change the name of the state.
63 and 67 sound pretty good to me, too. 71 seems a little extreme.
Corporations are soylent green!
What it proves is that there's no practical way to set up a system that removes the possibility of 'judicial activism'
This may be off topic by know but I wanted to recommend a good book I recently read dealing with the question of judicial activism.
It's a good introduction and contains in a variety of places clear explanations for why we can never remove "judicial activism" from the situation once we've recognized a right of judicial review (and one of the major themes of the book are the ways in which European countries have resisted an "American Style" of judicial review) including the following.
Put simply, it is never constitutionally sufficient, under a balancing standard, that the constitutional benefits outweigh the constitutional costs (least means). In this kind of adjudication, constitutional judges have no choice but to answer the following questions: "Can we imagine any statutary provisions other than the ones before us that would achieve the same result, serve the same constitutional value, with lower constitutional costs?" If the answer is yes, then the imagined statute is constitutional but the one before them is not. A jurisprudance of rights based on constitutional balancing leads judges to put themselves in the place of the legislature, and to conduct legislature-style deliberation, which partially explains why constitutional courts so often command parliament to legislate in particular ways.
Dang, B beat me to it. I guess I second the motion.
Yeah, that would make it work, T[CYO-A]K. I'm just reminded of when I was small hearing that some Big Company was bankrupt (maybe a phone company?) and wondering why that didn't mean someone came and took away all the phones and phone lines.
69 suggests that at some point qualification starts to become the positive, unqualified assertion of one's glaring ignorance. And that's only to be admired.
81 -- Heh. I was reading that as Cover Your Own Ass and trying to figure out what you meant....
Correct me if this is obviously naive, but if a corporation lost its corporate charter, what would stop the owners and employees from forming a new corporation that looked an awful lot like the old one, did the same business, and performed the same functions?
Well, if the 'death penalty' involved a forced sale of all the assets, it's not clear that the owners would be able to buy them. A real corporate death penalty is practical -- it might not be a good idea, but it could certainly be done to real effect.
I have no idea whatsoever how to respond to 82. Probably.
71 was of course exaggerated, but you have to admit it would sure discourage coverups.
I think America would do well to do away with judicial review.
It's one thing to say America should never have had judicial rule, it's another completely to say that now that we have it we should drop it.
David: I'm not actually certain how the alternative to judicial review works -- my sense of European legal regimes is shamefully weak. If you wanted to expound, I'd be all ears.
85- Meant only that you displayed a pleasing insouciance rather than the typical fretfulness of qualification. It's the difference between nervously checking yourself out in the mirror all day, and dressing badly and not giving a damn.
Here is the opinion of the district court. Its interpretation of the statute seems reasonable, but its constitutional analysis seems dubious. It finds a Federal constitutional right preventing the reporting of undisputedly criminal conduct on privacy grounds. I missed that section in the Constitution.
Part of the problem here is that the court seems so intent on deciding what policy it likes, it forgets the legal question before it--if the state enforced the law in the way that the Attorney General interpreted it, would it violate plaintiffs' Federal constitutional rights?
The state may not appeal this because the court's analysis seems right on the meaning of the state law, but it is hard to see how this would hold up on appeal. Indeed, there is a section at the end of the opinion where the court tries to address the points the Court of Appeals made when they reversed the court's prior ruling on this matter.
it forgets the legal question before it--if the state enforced the law in the way that the Attorney General interpreted it, would it violate plaintiffs' Federal constitutional rights?
Is that the legal question before it? I thought the legal question before it was "Is the clinic entitled to the injunction it seeks" and the answer was "Yes, because individuals have a constitutional right to privacy in their medical records when those medical records are being sought without any basis in law."
If the District Court were to up and decide that there were no right to privacy, that would be ignoring clear Supreme Court precedent, wouldn't it? And District Courts aren't allowed to do that.
And the opinion, on page 18 and 19, reviews what I assume to be good 10th Cir. precedent on the consitutional right of individuals to informational privacy in their medical records, where there is no contravening compelling state interest in production of those records. If the legislature says that it has a compelling state interest in teenagers' consensual sex lives, that's one thing -- the Attorney General deciding that it does by fiat is quite another.
I thought the legal question before it was "Is the clinic entitled to the injunction it seeks" and the answer was "Yes, because individuals have a constitutional right to privacy in their medical records when those medical records are being sought without any basis in law."
That would be a reasonable argument, but that is not the basis of the court's opinion. For example, the court explicitly holds that mandatory reporters, all minors, minor victims
of sexual abuse, and SRS will suffer injury with no adequate means of mitigation if all consensual underage sexual activity must be reported. Thus, even if the statue meant what the AG said it meant, the court would find it unconstitutional.
IANAL, but that looks to me to be in the part of the decision saying "Given that Kline is interpreting the rule wrong (probably), should we grant an injunction?" And in order to grant an injunction, you have to show that injury (irreparable injury?) would be caused if you didn't. So I don't think your last sentence follows.
Of course the opinion looks weak if you take bits of it out of context -- the sentence you quote, discussing harm to the plaintiffs and to the public interest generally, is balanced against the state's interest in compelling production of the records, which, according to the opinion, is at a low ebb at least in part because consensual sex between minors is not prosecuted and the statute has never been enforced against reporters in this contect. Obviously, if the statute had said what Kline says it said, and had been enforced consistently as such, the balancing would be different.
I have to qualify or even retract 87. I think the US model of judicial review is bad in principle, but I don't think you should do away w judicial review as much as limit it. I do think courts should sefeguard civil liberties.
All western countries have some degree of judicial review nowadays, you don't have to choose between Britain before the 90s and the US model.
I'm not entirely sure it's a good idea to get rid of judicial activism at all without reforming the rest of the political system, because the courts have sometimes countered other non-majoritarian aspects of the political system, but it seems unlikely they will again in a good long while and the bad outweighs the good.
If the District Court were to up and decide that there were no right to privacy, that would be ignoring clear Supreme Court precedent, wouldn't it? And District Courts aren't allowed to do that.
See, this is the problem with all constitutional provisions, but particularly with made up constitutional rights. Clearly, there is no absolute right to privacy. The Fourth Amendment explicitly recognizes the Government's power to search "houses, papers, and effects," it just limits that power. You have a Federal constitutional right against self-incrimination, but otherwise you can be compelled to testify in court, no matter how private the subject. To say that there is a right to privacy is like saying that you have a right to a pony--maybe, it depends.
Is judges legislating from the bench the price you hae to pay for safeguarding your rights? I don't think so. US justices are politicians in robes. A court that wasn't politicised would have been less likely to have mostly ignored guantanamo or given you bush v gore.
Right, but the 10th Circuit precedent cited on 18 and the pages following indicates that the 10th Circuit recognizes a constitutional right to privacy in medical records specifically. I'm not personally up on the 10th Cir. law on this issue -- the precedent may be wrongly cited, or there may be contrary precedent -- but it doesn't look as though the District Court is pulling this out of the blue.
10th Circuit precedent cited on 18 and the pages following indicates that the 10th Circuit recognizes a constitutional right to privacy in medical records specifically
Like you, I have not researched the cited cases, but you can see from the end of the district court's opinion, where it tries to deal with the fact that it already was overrulled once on this issue, that the 10th Circuit does not view the right you cite as an unqualified one.
Sure: as I mentioned above, the privacy right recognized by the 10th C. is balanced against the existance compelling state interest in production of the information. If you want to say that the state has a compelling interest in mandatory reporting of consensual sex between same-age teenagers, despite the fact that it's never passed a law contemplating such mandatory reporting, more power to you. But I don't think the district court's disagreement with you on that point is self-evidently wrong.
I'm not saying there's no chance the 10th Circuit might not reverse, but the possibility of reversal doesn't make a decision wrong.
Are the Supreme Court and other decisions being applied here any more difficult to interpret than the literal words of the Constitution -- say, "cruel and unusual punishment"?* If not, why is there a problem with the "made up" constitutional rights that doesn't apply to the ones you accept?
*If I were being mean I'd cite the Ninth Amendment.
Are the Supreme Court and other decisions being applied here any more difficult to interpret than the literal words of the Constitution
Actually, yes. One usually can look at the public discussion regarding the Constitution and its amendments and existing law to get a pretty good idea what was intended. This includes the Ninth Amendment--there obviously are questions on the margins, but it is not that hard to get a sense of what was intended. The Bill of Rights, for example, did not arise in a vacuum. The Due Process Clause, for example, has its roots in Magna Carta.
The idea of applying Supreme Court decisions in the privacy context is a false comparison. We have a written Federal Constitution, not a common law one. The Supreme Court pretends that it did not just make up the constitutional right to privacy, and that it has an underlying constitutional basis. So it is insufficient to say that one case follows another. Constitutional questions have to be decided based on the constitution.
You appear to be shifting ground here, though. In 99, you complained that 'made up' rights were more difficult to administer (determine what they are, whatever). Here:
So it is insufficient to say that one case follows another.
on the other hand, you're talking about legitimacy rather than difficulty of administration.
Now there's an argument to be made about legitimacy, and I'll have that argument if you like, but do you really think there's anything to your difficulty of administration point, when you compare right-to-privacy jurisprudence with the complexity of, say, First Amendment jurisprudence?
but do you really think there's anything to your difficulty of administration point, when you compare right-to-privacy jurisprudence with the complexity of, say, First Amendment jurisprudence?
Yes. I will do something foolhardy and try to use an analogy regarding philosophy in a site full of philosophers, when I have never taken a class on philosophy (although I think I read a book once).
Let's say you want to answer the question: what, if anything, does Kant say about this subject? Certainly there may be hard questions like this (an analogy to First Amendment law). But you can resort to the text of the things Kant wrote and contemporaneous evidence which might help you interpret what Kant wrote.
But privacy law is like starting from a book by a 20th Century scholar who says that Kant meant to say something, even when there is almost nothing in the text of anything Kant wrote to support it, and almost nothing in contemporaneous documents indicating that Kant thought about it or had an opinion on it.
So now to your question. Deciding a new question regarding privacy law is like talking about what Kant thought without referring to anything he wrote or any contempoaneous evidence regarding what he thought and instead starting from the works of a different scholar, several centuries removed. Maybe determining what that modern scholar would have thought about the subject is not too hard to do, but if you think the project is understanding Kant rather than understanding the modern scholar, you have a tough row to hoe.
Again, are you making a legitimacy argument, or an ease of administration argument? Because if it's an ease of administration argument, I believe you've just declared every common-law state supreme court impractical, which would, I am certain, be news to them.
(I am not here conceding that the right to privacy is not well grounded in the Constitution, just that even if it were not well grounded, your ease of administration argument, if you're making one, wouldn't stand up.)
The idea of applying Supreme Court decisions in the privacy context is a false comparison. We have a written Federal Constitution, not a common law one.
There goes stare decisis, and the personhood of corporations with it.
In re 108, that would of course be a crazy way to interpret what Kant, the man, actually thought. It would be a crazy way to answer the question "What did Jefferson think the law meant?" too. But it's begging the question in a massive way to assume that "What is the law?" is "What did Jeffersion (or his buddies) mean it to be?", and I don't have to be a lawyer to know this. (Especially because if my impression is correct, when you look at that not-hard-to-get idea of what was intended by the Ninth Amendment, what was intended was that the Constitution not be interpreted solely in terms of what the Founders intended.)
Biblical exegesis is probably a better metaphor for what Idealist is trying to get at here. The conclusions that gets you are not necessarily his, though.
I believe you've just declared every common-law state supreme court impractical, which would, I am certain, be news to them
Interesting. Name the states that do not have written constitutions. I believe that the set of states with common law constitutions is null.
Here is the problem, you want the Federal constitution to be the same thing as the common law. IMHO that is wrong as an interpretative matter and it's wrong as an historical matter. Even at the height of the 60's and 70's surge in judicial lawmaking, I am not aware of a Supreme Court justice arguing that constitutional law no longer had to have any moorings in the constitution.
Further, it does not get you where you want to go. As you know, many state supplement the common law in a number of ways with statutes because there are places where the common law just plain does not go. The common law is a legal tradition going back centuries. While the common law certainly does evolve, it is not legalese for making it up as you go.
if my impression is correct, when you look at that not-hard-to-get idea of what was intended by the Ninth Amendment, what was intended was that the Constitution not be interpreted solely in terms of what the Founders intended
To what are you referring here?
I'm not a historian, but I believe that the reason for the Ninth Amendment was that people were afraid that the Bill of Rights would be interpreted as enumerating all the rights that people had. So its intention is to say that people should have rights beyond those that are strictly in the text of the Constitution.
Actually, now that I've reread 106, I think I misunderstood you the first time. Were you saying that I was making a false comparison by bringing up a right to privacy? It wasn't a comparison at all. That's what actually happened. The District Court applied a right to privacy, based on relevant precedents.
So I'm still not sure whether you think courts should be bound by precedents or not. Frankly, it sounds like you don't, and I find that an eccentric version of following the law as it is. But I'd like to get clear on it, so I can refer back to your position next time the question of "judicial activism" comes up.
112: Look, I'm trying not to have the whole argument simultaneously here. On any given particular point of law, it has been demonstrated by centuries of experience not to be practically unworkable to have the ultimate authority on that point be a court with the capacity to depart from its own prior precedent when it believes that such departure serves the ultimate principles of justice underlying the law.
Can we accept that? Common-law courts, bound only by their own, principled, judgment of justice and the public interest on at least some points of law exist and are not unworkable.
Good. I thought we could.
So there is nothing impractical or unworkable about having a right grounded only in caselaw, even if we assume arguendo that the right to privacy is such a right.
You can say that that's not what courts are supposed to do, that it's illegitimate, all of those things, and I'll argue about them. I just want to, first, get out of the way the idea that it is somehow more burdensome or difficult to decide cases based on 'right to privacy' caselaw than it is to decide cases based on First Amendment caselaw.
If you think it really is more of an administrative difficulty to decide such cases, then make an argument -- I just want to postpone that portion of your argument that depends on a claim that what courts do to decide privacy cases is incorrect or illegitimate until after we've established that it is or isn't really less practical.
I'm not a historian, but I believe that the reason for the Ninth Amendment was that people were afraid that the Bill of Rights would be interpreted as enumerating all the rights that people had. So its intention is to say that people should have rights beyond those that are strictly in the text of the Constitution
This is my understanding as well.
http://www.tnr.com/doc.mhtml?i=20060424&s=primus042406
Hey! No linking to articles by my freshman-year next-door neighbor and making me think I've wasted my life.
Idealist:
I think you accidently sent me an e-mail by clicking on my name or something, and it included your work information. To the extent you worry about anonymity, you might think about a gmail account.
I mention this here rather than by e-mail on the off chance that it was not you who sent the e-mail, but someone else in your firm.
I think you accidently sent me an e-mail by clicking on my name or something
Thanks. I did not knowingly do so, if I did. Some other lawyer e-mailing SCMT?
I am not rigorous about being anonymous. I have an anonymous gmail account, but I rarely remember to use it. I probably should pay more attention.
re: 119
SCMT, are you sure it's from my firm? If it's from Dewey, Cheetham and Howe, that's LizardBreath's firm, not mine.
I assume so - NYC firm, male name, roughly the right age. If you want to see the e-mail, put your gmail address up, and I'll forward it to you.
If the firm is three names, Jewish Neutral & Irish, and the lawyer's last name is one letter off from a big city, that's Ideal.
I think this is discreet enough -- Ideal, send me an email if I should take this down.
re: 121-23
It's all OK, except that I am hurt that everyone ignored my Dewey, Cheetham and Howe joke. Come on, that's funny (even if not original)!
123: Silverstein, Beige, and O'lbuquerque.
LB:
I'm terrible at sorting out clues like those you've left. I'm forwarding the e-mail to your Hotmail account, which I realize you don't access until you are away from work. Out of an abundance of caution, were I you, I'd delete #119 onward.
125: it's not the partner's name that sounds like a big city, it's the lawyer's.
Thanks for stepping on my joke, TMK.
the lawyer's last name is one letter off from a big city, that's Ideal
This hint is complicated by the fact that LizardBreath cannot spell my last name. But I suppose this adds to the anonymity.
129 -- Or it could be that she has trouble with spelling names of big cities.
128 -- Glad to be of service. (Still chuckling a bit at O'lbequerque.)