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August 05, 2003

LET'S ONLY ENFORCE SOME OF THE LAWS, OK?....Atrios draws our attention to an editorial in the Washington Post today:

Buried deep in the appropriations legislation the House passed for the departments of Commerce, Justice and State is a little-noticed pair of amendments that attack the independence of federal judges. The amendments, offered on the House floor by Rep. John N. Hostettler (R-Ind.), are designed, as Mr. Hostettler put it, to "block federal funds from being used to enforce court decisions that found the use of 'under God' in the Pledge of Allegiance unconstitutional and ordered the Chief Justice of the Alabama Supreme Court to remove the Ten Commandments from the courthouse."

Let's see now, what was it that Andrew Jackson said when the Supreme Court ruled against the forcible removal of the Cherokee from land where gold had been discovered? Ah, yes: "John Marshall has made his decision; let him enforce it now if he can."

It's the same spirit, but at least you have to give Old Hickory credit for laying his bigoted opinions right out in the open instead of trying to hide them in the bowels of some obscure legislation. Why, you'd almost think Rep. Hostettler was ashamed or something.

Posted by Kevin Drum at August 5, 2003 10:17 AM | TrackBack


Comments

I agree with you on the 'under God' thing, but there remains an interesting question of what to do with a completely wacky judicial decision that for some reason you can't appeal. What can administrative and legislative branches do with rulings gone wild?

I think a classic case is the Nevada Supreme Court ruling saying that the 2/3 vote rule for taxes IN THE NEVADA CONSTITUTION could be set aside. This is clearly wrong, and clearly way beyond the power a court should have. What do you do about it? In Nevada you vote the judges out of office, but what do you do with the really bad law they leave behind?

Posted by: Sebastian Holsclaw at August 5, 2003 10:31 AM | PERMALINK

Sebastian: or you can realize the Nevada decision was moot, since the tax increases passed by more than a 2/3 margin anyway.

Posted by: phil at August 5, 2003 10:36 AM | PERMALINK

I was reading one of Stephen Carter's books the other day, and he claims that Jackson never said that.

Posted by: Crank at August 5, 2003 10:47 AM | PERMALINK

How does that effect the awful legal precedent that when one party can't get a 2/3 majority they can ignore the state Constitution?

How does that effect the fact that the judges clearly abused their power and ignored their basic governing document?

How does that change the fact that we don't have a good understanding of what to do when judges overstep their legal bounds?

Judicial impeachment for rulings is almost unheard of. Have we lost the check in the check and balance?

Posted by: Sebastian Holsclaw at August 5, 2003 10:52 AM | PERMALINK

Wait a minute, are you telling me that the constitution IS a suicide pact? I thought the reasons the government could gut all of the personal liberty clauses in the document was because of the dangers to the union of continuing to follow them in these dangerous time. Sauce for the goose is sauce for the gander. If we are going to allow the govenrment to reject bits of the constitution for war exigency, we will have to countenance it for other exigencies as well.

Posted by: epist at August 5, 2003 10:58 AM | PERMALINK

Hostettler's a bit of a crank. And by 'a bit,' I mean 'total.' It's basically his view that judicial review is unconstitutional.

Posted by: Dan at August 5, 2003 11:06 AM | PERMALINK

I'm with Dan. I do not believe that Hostettler is keeping this secret because of shame. He's a genuine crank, and he's keeping it secret because he knows it wouldn't withstand scrutiny.

Posted by: Registered Independent Joel at August 5, 2003 11:13 AM | PERMALINK

I was reading one of Stephen Carter's books the other day, and he claims that Jackson never said that.

What I heard in my Con Law course (admittedly many, many years in the past, so I could be misremembering) was that after Jackson said that, he quietly enforced Marshall's decision anyway.

Posted by: Basharov at August 5, 2003 12:07 PM | PERMALINK

"It's basically his view that judicial review is unconstitutional."

Well, Robert Bork thinks that, too. Wait a minute, I guess that means Hostettler IS a bit of a crank . . .

Posted by: rea at August 5, 2003 12:32 PM | PERMALINK

Bork doesn't believe in judicial review? That is news to me.

Posted by: Sebastian Holsclaw at August 5, 2003 01:08 PM | PERMALINK

It's one thing to argue that judicial review should be limited in some manner - essentially, to argue that Marbury v. Madison has its limits. What Hostettler believes is that Marbury v. Madison should have been overridden by the Supremacy Clause.

(the Supremacy Clause is, in my understanding, not relevant here - I'm not a lawyer and neither is Hostettler - as it was intended to give federal laws supremacy over state and local laws where both had jurisdiction)

Posted by: Dan at August 5, 2003 02:15 PM | PERMALINK

Hostettler's from near me and right-wing goon more or less defines him. I taught a Hostettler a few years ago, maybe his daughter. She was fine.

Posted by: John Isbell at August 5, 2003 02:16 PM | PERMALINK

In Nevada you vote the judges out of office, but what do you do with the really bad law they leave behind?

There are several approaches. The easiest, and most traditional when a court finds a conflict of laws and resolves it in a way you don't like, is to change or clarify either of the conflicting mandates so as to eliminate the conflict that led them to issue the ruling, thus making it inapplicable in the future.

Posted by: cmdicely at August 5, 2003 02:21 PM | PERMALINK

"Bork doesn't believe in judicial review?"

Sebastian, no he doesn't. I can't link, because he doesn't post a lot on the internet, though.

Posted by: rea at August 5, 2003 02:24 PM | PERMALINK

Sebastian: I think a classic case is the Nevada Supreme Court ruling saying that the 2/3 vote rule for taxes IN THE NEVADA CONSTITUTION could be set aside.

To be fair to the Nevada SC, they were faced with competing requirements in the Constitution: the 2/3 vote for the raising of taxes, and the requirement that education be "adequately funded". One can certainly make the case that the Nevada Supreme Court did what they were supposed to do, namely reconciling (by hierarchizing the competing requirements) the apparent contradiction and thereby turning the Constitution into a consistent legal document once more.

Frankly, I don't buy that argument here, and while I think that one could augment it into a case that the Nevada SC was within its mandate, the justification the SC actually gave for its decision was specious. Regardless, there's something far more substantive there than the judges just going apeshit and running roughshod over the constitution.

Posted by: Anarch at August 5, 2003 03:44 PM | PERMALINK

Anarch, I can't agree. When you have a constitution with a very specific procedural rule, you can't overrule it with general concepts even if they are also in the constitution. Judges don't get to decide when education is adequately funded. Legislators decide that. The constitution functions as a governing document which outlines how the legislature makes that determination.

What if a judge said that only Democrats 'adequately fund' education? Could he revamp Nevada election laws to disallow Republican candidates? I hope you would say no. Election laws are subordinate to constitutional precepts, so if you are willing to ignore the constitutional precepts I don't see why you would have trouble with other ones.

Posted by: Sebastian Holsclaw at August 5, 2003 04:14 PM | PERMALINK

Bork, like Scalia, believes that judicial activism is a bad thing, except of course when it is an issue that he personally feels strongly about. Then, of course, it's constitutionally mandated. Hypocritical bastards.

Posted by: Aaargh at August 5, 2003 04:36 PM | PERMALINK

Judges don't get to decide when education is adequately funded. Legislators decide that.

I disagree, which is I think the crux of the problem: I think legislators should decide when education is adequately funded, but once the case enters the courts then -- in the absence of any statutes specifying what "adequate" means -- the deciding authority resides in the law and not the legislature.

I think that sucks, frankly, but that's the only way I've ever seen to resolve this type of issue, on which more below.

The constitution functions as a governing document which outlines how the legislature makes that determination.

True, but it also imposes restrictions on what the legislature can determine. Slicing the reductio the other way, what if the legislature decided that education simply shouldn't be funded at all? Surely people would object, and would doubtless attempt to sue in defense of their constitutional right to an "adequately funded" education; so which authority decides that case?

Ultimately, I think, what this boils to is a general principle that I adhere to more out of desperation than conviction: if a law turns out to be ambiguous, the legislature has the authority to rectify the situation in the future, but the law (i.e. the judges) has the sole authority to rectify the situation in the past. The legislature gets to determine the nature of the rules of the game, but once the game is underway it is the sole province of the judiciary to determine whether the rules are being followed and, if not, what the appropriate redress is for that case -- even if the law is subsequently modified by the legislature.

Putting this yet a different way, the proper people to blame for this are the legislature (and/or the populace, depending on how the law was created) for making crappy law -- specifically, one which did not provide for ambiguities. Generically blaming the judges for breaking the tie one way or the other when the law itself is ambiguous seems to me to fundamentally misappraise the role of the judiciary in dealing with such issues.

Let me repeat: I think the justification that the judges gave for the resolution of this conflict was poor, and while I'm sympathetic to their decision I don't buy their rationale. [And in fact, I think we agree more than we disagree.] But I wholeheartedly support the power of the judiciary to disambiguate (usually by hierarchizing) legal snarls which have come to trial, even though the proper long-term remedy lies within the mandate of the legislature.

Posted by: Anarch at August 5, 2003 04:49 PM | PERMALINK

Sebastian, I've been trying to wrap my head around your example, and I think it's a good one... but could you please rephrase it in such a way that it's not blatantly contradictory of Federal law? Every time I try to refine my counter-argument, I run smack into "Well, the problem here is that the judge is a loon..."

[The fault, btw, is mine -- I _should_ be able to extricate the key point, but my brain seems to have frozen.]

Posted by: Anarch at August 5, 2003 04:51 PM | PERMALINK

Bork -- who, ever since his rejection for the Supreme Court, has seemed obsessed with proving that he's not qualified to judge a dog show -- favors a Constititutional amendment that would allow Congress to override ANY Supreme Court decision whatsoever by a simple majority vote. Which means, of course, that we wouldn't need a Constitution at all - it would just mean whatever the political majority at any one moment said it means.

Posted by: Bruce Moomaw at August 5, 2003 08:02 PM | PERMALINK

I think the Nevada SC decision is wrong and the "under God" decision (and even more so the Ten Commandments decision) are correct. No-brainer correct. Only the incredible hostility towards atheism in this country prevents everyone from admitting the obvious.

Would Sebastian accept a Pledge of Allegiance that referred to "one nation under Allah"? Shiva? Cthulu?

As far as Nevada, since it's a referendum state for better or worse, I would suggest they repeal the clause about funding education, since they don't mean it, or just pass an amendment emphasizing that the procedural requirements trump everything else (which should have been the Court's decision in the first place).

Posted by: Andrew Lazarus at August 5, 2003 11:00 PM | PERMALINK

there's no reason to have a fit about a bad state SC decision. Nevada can amend their Constitution to explicitly state that the 2/3 rule overrides the phrase about education. Or the judges can be replaced and overrule the previous decision.

This is just a symptom of a systemic dysfunction. Legislatures don't do their job, shifting the burden of legislating off to the courts. In cases like flag burning, the stakes are cheap political symbolism. Legislators avoid the ire of their constituents by passing laws they know are unconstitutional, using the SC as a safety net. Baker v. Carr, the redistricting decision, was another example. This isn't the way the system was designed to work.

Posted by: Roger Bigod at August 6, 2003 02:10 AM | PERMALINK

I agree with you on the 'under God' thing, but there remains an interesting question of what to do with a completely wacky judicial decision that for some reason you can't appeal.


A wacky judicial decision along the lines of, oh, say... appointing a president the voters didn't elect?

Posted by: RCSanders at August 6, 2003 07:12 AM | PERMALINK

Anarch, you are right that my example blatantly violates Federal law and thus could be appealed to federal court. I was trying to look at it from a state perspective, and while the example is adequate from the state perspective, it isn't completely satisfactory because a federal appeal would be available.

Before I get on with that I just want to state that in my opinion, a failure to obtain a Constitutional procedural requirement IS a legislative judgment. The judgment is that enough agreement has not been obtained to take action. The Constitution governs the process. People rarely complain when a 100 seat legislature fails to pass a bill with 49 votes because the judgment is 'the bill isn't good enough' (for the accepted procedural requirements). A US constitutional amendment requires 3/4 of the states to ratify. If you can only get 2/3, the judgment is 'not good enough to be an amendment.'

Let's try this. The Nevada Constitution states that the judiciary must be adequately funded. The legislature passes a 1% raise for all judges. If you accept that the Nevada Supreme Court is allowed to set aside legislative judgments on words like 'adequate', then the Supreme Court could rule that a 5% raise is needed for adequate funding. (They might exempt their own salaries to avoid conflict of interest charges.)

Constitutional instructions regarding adequate funding are instructions TO THE LEGISLATURE. If the legislature fails to contemplate funding of education or the judiciary in a particular year, you might have an argument requiring them to do so. Once they have done so, the Court can have no role in that decision from that angle. The level of funding that is 'adequate' has to be a legislative decision or else the legislature has no real function.

Posted by: Sebastian Holsclaw at August 6, 2003 09:42 AM | PERMALINK

Sebastian -- I have a response in mind, but I'm in the middle of getting crushed by work; can I ask that you check back on this thread, oh, sometime over the weekend? I'm interested in continuing this debate but, alas, my students have to come first. The bastards. ;)

Posted by: Anarch at August 6, 2003 08:55 PM | PERMALINK

Sure, though by then the article will have drifted off the front page. Look for it in the August archives.

Posted by: Sebastian Holsclaw at August 7, 2003 10:04 AM | PERMALINK

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