One difficulty I have with TFan's statements on Obergefell is that he's ending up in a different place than where he started. This is where he initially staked his ground:
Actually, the founders accepted the idea of judicial precedent as law. They all had as their framework the English "common law" system, in which judicial precedent was treated as law. The Constitution doesn't oppose this framework. In the historical context in which the Constitution was written, it was assumed that judicial precedent would be treated as law.
That's an appeal to the past. To the relevance of historical interpretation. To the pertinence of what the founders intended.
But in his latest statement he says:
Once again, there is a sort of academic argument to be made that the final determination of constitutionality should lie in the Executive or Legislative branches, but in practice that's not where the American system is today.
Today, even when the Supreme Court makes bad Constitutional decisions, its decisions stand as law until either they are overruled by subsequent Supreme Court decisions or the U.S. Constitution is amended. That's how the system is, whether or not that's how the system should be. I leave the should be question to the academics and the rich.
That appeal nullifies past understanding. What the founders had in mind is beside the point. That's just "academic." All that's germane is how things stand as of now.
From what I can discern, TFan switched arguments in midstream. Indeed, reversed his argument. His initial argument was based on the origins of the Republic in a common law tradition which English colonists inherited from the Mother country.
But according to his latest argument, that appeal is mooted by the current status quo. All that matters is how the system works at present, and not whether that's at odds with the intentions of the founders, as well as the states that ratified the Constitution.
You're conflating two different arguments. One argument was over whether judicial precedent is law. The other argument is over whether judicial precedent should be the supreme law. The former one (i.e. my point) is not reasonably disputable. The latter one is such a weak argument that it's merely academic. I hope that helps relieve your confusion.
ReplyDeleteThe court's constitutional decisions are not common law. That is a different system, operating under different principles.
DeleteRight, louis. The similarity, though, is that they are judicial precedent.
DeleteHere is a summary of what I mean: http://www.firstthings.com/blogs/firstthoughts/2012/12/common-law-and-constitutional-law-a-response
DeleteSo I think when you conflate constitutional interpretation with common law, you accord too much to the judiciary. Under the common law judges may fashion responses to changing circumstances; under the constitution their job is to interpret and apply the law as the people have written it.
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ReplyDeleteLouis,
ReplyDeleteWhenever a judge interprets and applies constitutional law mustn't he do so according to circumstances that can be quite varied? In what sense does interpreting and applying differ from fashioning according to changing circumstances?
Common law basically operates in the absence of a statute. As Barron's states, it was "originally based on the unwritten laws of England... generally derived from principles rather than rules... based on justice, reason, and common sense... determined by the social needs of the community." In other words, judges made the laws -- guided by reason, fairness, and precedent. Statutory and constitutional laws, on the other hand, are made by the people acting through legislative bodies. The judge's role in such cases is to interpret and apply the law the people have made, not to determine in the first instance what is fair or just. Obviously they have to interpret these laws in light of changing fact patterns, but the role of the court is much more restrained, and they are held to an external standard -- namely the law in question as written.
DeleteLouis,
ReplyDeleteI'll have to think about that more. Seems to me that the binding nature of judicial precedent makes your point a distinction without a relevant difference. I'm not versed in these things so I'll just go back to lurking. :)
Precedent guides judicial decisions. It's binding on the courts, if you want to look at it that way. That is a separate issue from whether a court's decision has the force of law.
DeleteFor that matter, precedent in this case suggests the illegitimacy of the court's opinion. As Chief Justice Roberts noted in his dissent, Obergefell "has no basis in the Constitution or this Court's precedents.... This Court's precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning.... The majority purports to identify four 'principles and traditions'... In reality, however, the majority's approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking."
DeleteJudicial policymaking might be appropriate to a common law court, but not to one interpreting a constitution.
DeleteObviously there can be conflicting precedences (2,3...). Added to that, each precedence can conflict with the original law (1). I would, therefore, think that if one believes that either 2 or 3 supports 1, he can rule according to 2 or 3's interpretation of 1. That said, this might answer my question. If a judge finds both 2 and 3 inadequate or just plain wrong, may he rule according to his own understanding of 1, creating a 4? I suppose so. That suggests to me significant difference between precedence and original, not unlike Confession and Bible (or Greek text...) But again, I'm over my head and out of my league.
ReplyDelete