From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Newsgroups: alt.politics.usa.constitution,talk.politics.misc
Subject: Re: The Third Branch (LONG)
Date: 27 Sep 92 05:40:25 GMT
Organization: University of Colorado, Boulder

In article <1992Sep22.171959.28301@toontown.uucp> ucda@toontown.uucp (Chris Andersen) writes:
>[I'd just like to preface any additional comments I'm going to make by
>saying that I am not a Constitutional scholar.  I believe, however,
>that I have a solidly informed laymen's opinion of the constitution 
>which gives at least some legitimacy to my arguments.  Let's just
>say that I strive to keep an open mind, especially on those things
>which I may not fully understand.]

Since you feel this is important to note, I should also say that all of the
above statements apply equally well to myself.

>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.

>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.

>"Intent" and "spirit" are terms which have no fixed meaning.  But 
>interpreting them is necessary to correctly enforce the written law.
>In fact, NOT judging the spirit of the law can also encourage judicial
>activism.  If all a judge has to go by are the words written in the
>law then he could choose to interpret those words in any way he sees fit.

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.

>It's a fallacy to think that the written word is specific in its meaning.
>Perhaps it is more specific then nebulous concepts like "intent" and
>"spirit", but it is still open to a wide variance of interpretation.

True, and within this variance, the Court has to use judgement. This
range is further narrowed by considering the intent, and I think the
proper role of the Court is to interpert the law _within_these_limits_.

>>Because interpertation of a tangable, written provision is _vastly_
>>more objective and impartial that guessing at the "spirit." The
>>goal of all courts of law should be impartiality.

>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.

>I am suggesting that a more honest approach to judicial review is to
>admit that bias will always creep into judgements.  A bias should be
>allowed for in how the letter AND intent of the law is interpreted.

I'd disagree: I think the structure of the debate (e.g. the line of
reasoning by which the interpertation is reached) 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.

>>>They are already doing it anyway, why not be honest and just admit it?
>>Because I don't think they should be doing it at all.
>But they will!  They're human!  They can't NOT be partial.  It is 
>physically and emotionally impossible.

The Court has done so on many occasions. Ex Parte McCardle, for example:
The Court had heard an appeal from a southern publisher, tried and
convicted by a peace-time military court following the Civil War. The
Court was about to rule the _entire_ military government of 
reconstruction unconstitutional and order the releave of McCardle.
The Congress (with a veto-proof majority of "Radical Republicans")
removed the Court's jurisdiction to hear cases from military courts
(as per their Article Three power to make "exceptions and regulations"
to the Court's jurisdiction.) The Court ruled that Congress did have
this power, and therefore they could not help McCardle. In doing so,
the Court acted totally against their own feelings, rather than put
their views and wished above the written word of the Constitution. The
Court is _very_ able to act impartially.

>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.

>If absolute impartiallity is the fundament goal of the judiciary then a
>lowest common denominator approach is fostered: if you can't find absolute
>justification for an opinion in law then don't say anything at all and
>let the president and the congress do whatever they want.  Even though
>ultimately it is next to impossible to find absolute justification in
>most of the laws as they are written today.

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. 

>And I am arguing that the reason the courts are not enforcing it is a direct
>result of the argument that the courts should not intervene unless they have
>a clearly written justification for that intervention.

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 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.

                                            Frank Crary
                                            CU Boulder
Newsgroups: alt.politics.usa.constitution,misc.legal