From: ucda@toontown.uucp (Chris Andersen)
Subject: Re: The Third Branch (LONG)
Organization: The Department For Doing Departmental Things
Date: Mon, 28 Sep 1992 19:08:23 GMT

In article <1992Sep27.054025.4992@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
>
>>I guess my central thesis is that the
>>system as outlined in the U.S. Constitution will work if and only if all
>>three branches equally exercise their rights and responsibilities as
>>outlined in that document.  
>
>Actually, the role you suggest for the Supreme Court is _not_ outlined
>in the Constitution: They are not given exclusive power to interpert
>the Constitution, nor any authority to force their interpertation on
>the other branches. They have _assumed_ this authority, and the public
>supports them in this (making it politically impracticle for the Congress
>or President to directly violate a Court ruling.) But it is important
>to realize that the Court's authority comes _totally_ from public
>confidince in the Court.

I believe I said essentially the same thing in my posting.  All judicial
action is a balancing act between the law as it is written, the conscience 
of the judge, and the willingness of the people (and their elected
representatives) to go along with their decisions.  

My perception is that the other branches of government have adopted an
extremely hostile attitude tworads a strong judiciary.  This attitude 
has stifled the more activist tendencies of the courts.  But this attitude,
justified as it may have initially been, has also beaten them down so much
that the current courts would rather abandon their "impartial judgement"
role then risk the condemnation that might come if they pushed their
opinions.

So, perhaps my objection is not so much with the weakness of the present
courts but with the way the rest of government (especially the executive 
branch) has tried to bully them into submission.  I fear that this WILL
get worse before it gets better.

>>The existences (and necessity?) of this pseudo-branch is perhaps the
>>single greatest example of short-sightedness on the part of the framers
>>of the Constitution.  Did any of them forsee that such a governmental
>>organization may arise and/or may be necessary?
>
>Definitely not: The supposed need for these agencies is the vast number
>of laws that "have to" be enacted (far more than Congress could 
>reasonably consider on its own.) The framers (even the most vocal
>Federalists) envisioned a federal government of limited scope. The
>idea the Congress might stay in constant session (and the quantity
>of laws that this would imply) was considered dangerous by the 
>framers. They idea that the government would pass so many laws, that
>Congress couldn't handle it all, probably never even occured to them.

Of course it probably never occured to them just how big a country 
America would become.  Did any of them forsee the ultimate extent of
the expansion into the west?  Did any of them forsee the possibility
that America would become the strongest country in the world?

Think of it this way: at the time the Constitution was written the world
was dominated by the European super powers and the framers knew very well
the threat that could arise if those powers turned their attention back
to the western hemisphere.  Given the environment of the times is it
possible that the framers never even imagined the possibility that the
U.S. would some day be the dominant superpower?  Perhaps some of our
problems today stem from that fact that we are operating under a
Constitution which was written with the assumption of a mostly defensive
posture in world affairs.

>The real issue is what the Court should do, when the text of the
>Constitution disagree with the intent (or the preceved intent). That
>is, a provision that doesn't do a good job of assuring what it was
>"intended" to do. Should the Court step in and _invent_ new laws,
>to assure the supposed "intent", or they stay out of it and let the
>people (via the Amendment process) solve the problem.
>
>I believe in govenrment by the consent of the poeple, and in the rule
>of law. Since the people don't necessarily consent to a Court-created
>law, and such laws are a "rule of man", I think amendment is the only
>acceptable solution.

I am not arguing that the courts should write the law.  I am however
arguing that the courts should be more "active" (not "activist", there
is a difference) when it comes to the enforcement of the written law.
If the courts should somehow come to an interpretation which is
contrary to the opinions of the people and their elected officials then
those officials can step in and change the law to make it more clear.
This is the proper way to balance the power of the judiciary.

However, the current method of balancing seems to be to pack the courts
with judges who take an apathetic view tworad enforcing laws: if they
can't make a clear judgement based precisely on the law as written, then
they will just shut up and let the President and Congress dictate how
things should be.

I don't believe the courts should defer to the executive and legislative
branches any more then the President or Congress should defer to each
other.  

>>Does anyone seriously believe that impartiality is an achievable goal?
>
>Of course it isn't achievable, but what does this have to do with the
>validity of the goal? The _goal_ of a criminal court is to always
>convict the guilty and never to convict the innocent. This goal is
>just as unrealistic as absolute impartiality, but courts still try
>to come as close as possible.

Exactly.  But I continue to feel that the whole "original intent"
argument is really just a snow job being perpetrated by those whose
real intent is to turn the courts into a rubber stamp for executive
(and legislative) action.  

Impartiallity is a pipe dream, a good pipe dream, but a pipe dream
none the less.  But some who argue for "original intent" are basically
saying that if the courts cannot be absolutely 100% impartial in
its decision making then it should not say anything at all.  But since
this is essentially impossible, what they are really arguing for is
the effective elimination of the courts in the governing process.

I don't believe we have reached that point yet, but neither do I think
we are that far off.

>... I think the structure of the debate ... should, as far as possible,
>minimize the bias of the interperter. Specifically, if the interpertation
>is based on factual evidence (the text and the statements and writings
>of the framers) then limits are imposed on the bias. On the other hand,
>if vague principles (such as the "spirit" of the Constitution independent
>from it's text) are used, the subjective nature of these principles will
>_increase_ bias.

Ultimately yes, allowing for bias can and will encourage bias, but the
executive and legislative branches have the ability to limit that bias
(by means of appointment, legislation, and amendment).

The fear of bias is exactly what I am talking about: the courts would
rather defer their decision rather then risk the posibility of exposing
their biases.  However, I think that the risk of bias should be allowed,
with the caveat that the executive and legislative branches have
the option of stepping in and difusing those biases.

>>The courts must be trusted with the authority to interpret the laws as they
>>see fit.  The best we can do to influence those judgements is to make sure
>>that only the most honest, forthrite, and logical individuals are given the
>>authority to make those judgements.
>
>Actually, the Court's authority to bind the rest of government to its
>rulings is purely political depends on the confidince of the people. This
>is the only thing forcing the President and Congress to defer to the
>Court. If the Court appears to be a political tool, they will loose this
>confidence and their rulings will become almost meaningless. An 
>impartial method of interperting the Constitution is the best way to
>maintain this vital public support.

But if the court becomes nothing more than a rubber stamp then how is that
any better then the President and Congress simply ignoring their
decisions?  In either case a vital check on the powers of the other
branches is effectively eliminated.

Again, a delicate balance must be maintained between an active court
and an activist court.  If the court becomes impassive then the
President and Congress will be able to ride roughshod on them.  If
they become activist then the popular opinion may (emphasis on may)
turn against them and the President and Congress can again ignore
them and do as they please.  Neither extreme is preferable.  I am
arguing that we are rapidly approaching the extreme of an impassive
judiciary and that we better be prepared for the consequences.

>I don't think an _absolute_ justification is required, simply always 
>remaining consistant with known facts (the text and the recorded 
>opinions of the framers.) 
>
>However, you are also misunderstanding a major feature of the Constitution:
>The Tenth Amendment very clearly limits the federal government to those
>powers granted by the Constitution. So, as a general rule, a law is
>unconstitutional _unless_ the Constitution grants such a power. In 
>the case of ambiguity, the burden of proof is on the government; in the
>absence such proof the law is unconstitutional. 

This is perhaps one of the clearest examples of how the present courts
DON'T exercise their power:  the tenth amendment, as you say, clearly
limits the government to the specific powers outlined in the Constitution.
Yet the government today constantly oversteps those powers (though they
try to justify it with various constitutional loopholes such as the
commerce clause).  

So where is the courts in all of this mess?  Shouldn't they be basically
saying that much of the present government is inherently unconstitutional?
After all, doesn't the doctrine of "original intent" virtually DEMAND that
they do so?

Where in the constitution does it say that the President has the authority to
covertly aid the overthrow of a foreign power?

Where in the constitution does it say that the Congress has the power to
set up regulatory agencies which effectively pass laws without electoral
consent?

Here's a scenario for you: the Supreme Court, in a landmark ruling, re-afirms
the importance of the tenth amendment and states that many of the powers
currently wielded by the U.S. government are inherently unconstitutional.

If this were to happen then the Congress and the President would have to
either ignore what the court says (and thereby essentially say that the
Constitution is just a piece of paper), or they would have to work to
pass amendments which would more clearly outline what the government can
and cannot do.  In either case much of the bullshit justification and loophole
searching which all sides participate in would have to stop and the
government would essentially be forced to be honest in what it is doing.

This is what we would get from an active (not activist) judiciary: a more
honest form of government.

>The reason the Court so often fails to act isn't a matter of
>justification in the text (which usually exists), but rather _fear_:
>The Justices all know that the must maintain public confidince if
>their rulings are to be enforcable. They try to avoid "hot" political
>issues, that will risk public support for the Court. The Brown v.
>Board of Education decision is a good example: The Court was 
>ready to overturn "seperate but equal" over a decade before the
>ruling. However, they felt the "political climate" wasn't ready
>to support such a ruling, so they waited.

So you agree with one of my main points: that the courts today act, not
of a sense of judicial responsibility, but out of a sense of fear for
how they might appear.  Yet aren't the courts supposed to be impartial?
Aren't they supposed to be above the petty fears and biases which normally
affect the political process?

Shouldn't the court have simply ruled 10 years earlier and FORCED the 
crisis which would have resulted?  If they had ruled and the President
and Congress had worked to ignore what they said, don't you think this
might have cast an equal amount of disdain upon them as it might do
upon the courts?

After all, the President is sworn to uphold the Constitution and the
court has ruled that the Constitution is being violated.  If the
President then does not go forth to rectify this situation isn't
he therefore in violation of his oath?  Isn't he therefore eligible for
impeachment?

The Constitution is a piece of paper with a bunch of black marks on
it.  It has no more inherent meaning in it then that.  It is how
the branches of government, which it set up, interpret those black
marks which really sustains this country.

>>So yes, I am arguing that there are times when NON-elected officials should
>>step in and bring about change in the system.  For the simple reason that
>>when decisions are based completely on public opinion that ultimately the
>>system will collapse.
>
>When _all_ decisions are made by public opinion, true. But this doesn't
>necesasarily apply to the _structure_ of the government. I think the
>people _must_ consent to the "system" or any changes in it (since
>the consent of the governed is the only legidimate source of political
>power.) However, the results of the "system" (e.g. the Constitution
>and laws) must be impartially applied regardless of public opinion.
>
>Therefore, the judiciary has the power to interpert and apply the
>Constitution, but not to "step in and bring about change[s]" in it.

Where have I argued that the courts should step in and bring about
change?  I've only argued that the courts should step in and prevent
the other two branches from making changes when those changes do
not have sufficient constitutional justification.

Ultimately all the courts can do is say what the other branches
can't do.  They can't tell them what they must do (and I object when
they try to do just that).  When they do that, its up to the
other branches to either ignore those rulings, work around them,
or pass amendments which provide the justification which the courts
require.

To function any other way is to perpetuate the lie that ours is a
constitutional democracy.

-- 
Chris Andersen (..!uunet!sequent!toontown!chris)

"...the only thing worse than being hurt is being bored." -- Daniel Mocsny