From: capn@mentor.cc.purdue.edu (Steve Thurston)
Subject: Re: The Courts and "De Facto Law" (was Re: Separation of Church & State)
Organization: Purdue University Computing Center
Date: Mon, 28 Sep 1992 17:50:15 GMT

First, let me apologize for this taking so long.  As with you, school comes
first...

You're right, of course, in that the legitamacy of the courts in their 
*edictum ex iudice* policy is a matter of interpretation.  The Constitution
doesn't seem to concern itself with it to much.  But in my attempts to come
up with a defense of the "no legislation from the bench, please" attitude, I've
come across a stumbling block.

Not being in any way a constitutional historian, I don't know where this 
precedent began.  I thought Marbury v. Madison would be a good place to find
it, but Marshall's purpose seemed pretty clear:  anull a law, no further.
I looked through a couple of other biggies, and the closest thing I found to
*edictum ex iudice* was this passage in Cooper v. Aaron:

    On May 20, 1954, three days after the first Brown [v. Board of Education]
    opinion, the Little Rock District School Board adopted, and on May 23,
    1954, made public, a statement of policy entitled "Supreme Court
    Decision -- Segregationin Public Schools."  In this statement 
    the Board recognized that "It is our responsibility to comply with 
    Federal Constitutional Requirements and we intend to do so when the
    Supreme Court of the United States outlines the method to be followed."

The rest of the decision, however, never mentioned any method, and merely 
amounted to an order to carry out Brown v. Board of Education.  This 
passage seems to imply that a precedent for *edictum ex iudice* was already
in existence, at least at the local level, which was being carried out on 
a national scale.

Perhaps you can point me in the right direction.  Since the powers of the 
court have been interpreted to include the issue of active "instructions,"
I am curious to know where this notion came from. 

Stephen McIntyre writes:

>Here's a good question for you and/or anyone else who may be reading
>     this.  If a legislature (federal, state, etc.) passes a law
>     knowing such a law is unconstitutional (whether before they
>     passed it or after being told of it by the courts), 1) who 
>     has the power to consider such a law unconstitutional...
>
As you said, this power has rested with the Court since Marbury v. Madison.
This is not constitutional, but I believe it to be impossible to avoid.
In Eakin v. Raub, John Gibson tried to reserve this power to the legislature,
but he failed to say what a court would do when it was faced with two laws
that it found to be in conflict (That right there is an interpretation which
per force resides with the presiding justices).  Should the justices set 
aside the case and make an appeal to the legislature (Which one?) to resolve
the issue for them?  This would seem to wipe out anything about speedy
justice...  The only alternative is to allow the justices to make a decision,
anulling the "unconstitutional" law, and let the legislature try to work
around it if they wish (Which has been done.  You may recall the 11th
Amendment...).  

>     2) who has the power to make sure such a law is unenforcable, 

Constitutionally, the executive branch.  This is how it works out in 
practice as well.  Thus the famous example of Jackson and his disagreement
with the Supreme Court.  

>Six months have gone by, and he appeals his case in federal 
>     court.  The federal court, in its wisdom, overturns his
>     conviction, stating "his civil rights were violated."
>     In addition, the court finds the state law to be
>     unconstitutional under the Fourteenth Amendment's Due 
>     Process clause.  Question 1:  can the court force the
>     state not to enforce this law (since, according to 
>     earlier arguments, the court has no such power)?

I find the Due Process clause to be a weak way to accomplish the desired end.
The judiciary probably overstepped it's bounds here.  I think that they had
and agenda (which, fortunately, I agree with) and they were willing to 
stretch the limits in order to accomplish it.  The only reason we accept it
is because it's something we want.  Under different circumstances, this is
a dangerous precedent.  Anyway, the solution to that is another topic.

The court can't enforce the law itself, since it has no police force under
it's command.  This is the job of the executive branch.  If the court issues
a decision, the executive branch is supposed to enforce the decision.  I 
think only Jackson has had the gall to not do so (but I can't say for sure.).
 
>In the example above, I have shown (I hope) a law (and/or a series
>     of laws) that i) discriminates against a particular person
>     or group and ii) causes that person or group to suffer.  So the 
>     questioned is begged: "do those who may have suffered because
>     of the law deserve just compensation for their suffering?"

Unfortunately, the situation of the blacks (oops, I mean, blue-eyes) is not
that easy to rectify.  The question that you *haven't* asked is, is the
suffering a direct cause of the law, or an indirect cause?  Discrimination 
(which, unlike your blue eyes example, came first, but I'll set that aside
for now)  is not a direct effect of the law, although the law may encourage
such sentiments.  And how do you compensate for such suffering anyway?  And
how do you compensate for injustices done in previous generations?  Take 
money from the current generations inheretance?  That's creating a blood
connection, something that the Constitution definitely does NOT like.  The
fact is that the laws have both created and perpetuated injustice (by our
standards) in the past (and present).  But in such a large "class action,"
determining blame and just compensation is impossible, and the only practicle
solution is to nullify the offending laws.

In a more legal vein, if an unconstitutional law is passed and then exposed
as such, the law is nevertheless the law, and there probably couldn't be
any recourse beyond nullification.  If a constitutional law has been violated
however, (Such as not hiring someone because they are bla... ehr, blue-eyed
when a law says that that cannot be a factor in the decision) then an 
individual can be forced to render just compensation.

As a final note, I might surmise (from what I know) that most non-discrimination
laws were put in place to correct already present discriminations, and thus
they could not force compensation for past discriminations, as that would make
them into *ex post facto* laws.


>Under the Civil Rights Act of 1871, Rev. Stats. S1979, we find in
>     42 U.S.C. S1983 the following for "civil action for
>     deprivation of rights": 
>     
>     Every person who, under the color of any statute, ordinance,
>     regulation, custom, or usage, or any State or Territory,
>     subjects, or causes to be subjected, any citizen of the
>     United States or other persons within the jurisdiction
>     thereof to the deprivation of any rights, privileges or
>     immunities secured by the Constitution and laws, shall be
>     liable to the person injured in an action of law, suit in
>     equity, or other proper proceedings for redress.

Note that is says "person," not "State" or, basically, "gov't organization."
If a State passes a law, the likelyhood of recourse beyond nullification would
seem to be small.  Also, the section that you have just quoted would seem to 
be in conflict with the Constitution, since it grants the right to vote to
infants.

Anyway, that's enough for now.  When you spot the holes in my reasoning, feel
free to point them out.

Steve Thurston
-- 
Steve Thurston
capn@mentor.cc.purdue.edu   ...or...   capn@PURCCVM.cc.purdue.edu