Tuesday, September 22, 2015

Back to the founders

I'm going to respond to a round of comments by TFan:

"And see my point two about the need to concede the point of my original article if you want to debate judicial supremacy."

You mean your unqualified claim that judicial precedent is law? Why should I have to concede that to deny judicial supremacy? You seem to equate denial of judicial supremacy with civil disobedience, according to which judicial precedent is ipso facto law, so that rejecting judicial supremacy's equivalent to breaking the law. But since that equation is the very issue in dispute, I hardly need to concede your premise to deny your conclusion. Rather, I deny your premise.

"That's simply not true. Even if judicial precedent can be overruled other ways, it's still law. You need to start thinking more clearly about this."

You constantly resort to a simplistic formulation of the issue. It is "the law" for whom or what? The litigants? Lower courts? The law of the land? A law that's binding on the executive and legislative branches? Not according to departmentalism. 

You said "it takes a Constitutional amendment in the US" to "overrule the courts." That presumes judicial supremacy. But according to departmentalism, judicial precedent is not ipso facto binding on the other two branches of gov't. 

"The English system wasn't a purely common law arrangement, so your argument fails."

I didn't claim that the English system was a purely common law arrangement. In fact I've discussed how it combines elements of common law and fundamental law. 

I'm simply answering you on your own terms. In principle, a written constitution restricts judicial freedom. Judges have less discretion under that system than a common law system (or system combining common law with natural law). 

"I don't need to prove judicial supremacy to prove that judicial precedent is law. You seem to have trouble distinguishing those points."

Which misses the point. "Is law" for whom? That's the problem with your unqualified formulation. If, say, the executive refuses to enforce a particular judicial ruling, then the general public needn't abide by that ruling. It can't be "the law of the land" if it is not in force. If the executive or legislative branch hasn't obliged them to comply, it lacks the force of law. 

"Practically anyone who knows anything about the American legal system recognizes that for the last two centuries, judicial supremacy has been the status quo. That two centuries is old enough to encompass the founding fathers, like Madison of Marbury vs. Madison."

i) I believe that's the second time in our exchange that you've appealed to Marbury as if that's a deal breaker for my position. From what I can tell, you haven't bothered to read (or absorb) the supporting material I've adduced regarding departmentalism, for if you had, you'd realize that departmentalism, is consistent with judicial review, but opposes judicial supremacy.

It's self-refuting for you to accuse me of ignorance regarding the alleged implications of Marbury when, before you left that comment, I already did a post engaging that very claim:

Likewise, I engaged the same claim 3 days before in this post:

Where I quote Constitutional scholar Michael S. Paulsen. 

Likewise, on the first week of the month, I linked to no fewer than four discussions of that very issue:

If anything, you're the one who seems to be uninformed. I've presented fairly copious counterevidence to your position on judicial supremacy, which includes direct engagement with Marbury, and you haven't produced any evidence to the contrary. All you do is to name-drop Marbury v. Madison and take your interpretation for granted. That's your prerogative, but it's not a refutation. Not even rational persuasion. 

The constitutional scholars I've cited explain how Marbury is consistent with departmentalism. How that's not a recipe for judicial supremacy. You might disagree with their interpretation, but thus far you don't even show any familiarity with the other side of the argument. 

ii) In addition, if you were attentive to the historical evidence I've cited, you'd be aware of the fact that departmentalism goes right back to the founding fathers. From what I've read, both Jefferson and Madison were departmentalists. 

According to departmentalism, each branch of gov't has the duty and authority to interpret the Constitution. Likewise, one branch's interpretation is not ipso facto binding on another branch. 

From the legal scholars I've read, you have Marbury backwards. It's not asserting the authority of judicial Constitutional interpretations to compel the executive and legislative branches, but denying the authority of executive and legislative Constitutional interpretations to compel the judiciary. 

The founding fathers were concerned with autocratic gov't. Concerned with any one branch becoming autocratic. Concerned with mobocracy. They devised a system to split the difference, so that no one power center would have enough power to deprive the other power centers of their power. 

In addition to the role of the elective branches, there's direct democracy. Departmentalism is one traditional theory opposed to judicial supremacy. But as I noted in a response to you, Constitutional scholar Larry Kramer has made a historical case for Constitutional populism. According to him, that's another traditional theory opposed to judicial supremacy. 

"Steve Hays has raised the question of the legitimacy of what he terms Judicial Supremacy…So, let's briefly consider the question of so-called Judicial Supremacy."

I don't know why you act as if that's my idiosyncratic terminology. In Cooper v. Aaron (1958), the Supreme Court used that terminology to characterize its own claims. This, again, makes me wonder how conversant you are with the details of the debate. 

"In practice, i.e. the way things are, the Supreme Court's interpretation wins. That's the way it has been, almost without interruption since the time of the founders. There are some rare situations that have challenged that status quo, such as when around 1832, President Jackson supposedly said "John Marshall has made his decision; now let him enforce it!"

It wasn't just Jackson alone, acting unilaterally. Rather, Jackson and Congress were united in their opposition to the Court: two branches against one. Then there's the celebrated case of Lincoln treating the Dred Scott ruling as a dead letter. 

(BTW, I don't countenance the Indian Removal act. But I'm not discussing the issue on the merits. I'm just discussing procedural issues.)

"It seems to be much less compelling that the President or Congress could simply disregard a Supreme Court decision because they don't think it was justified, even if they don't think it would violate the Constitution. After all, what if the Court did that? In other words, what if the Court didn't say laws were unconstitutional, but simply refused to treat as valid laws it didn't think were justified? That would seemingly potentially cause chaos."

i) Yet that's precisely what the Court did in Marbury, even though TFan hangs his argument on that peg. 

ii) In addition, TFan raises a pragmatic objection to departmentalism, but he ducks the question of whether it was the intent of the founding fathers to make the judiciary the final arbiter of what the Constitution means. 

BTW, I'm not suggesting the founders had a monolithic view of the judiciary. But from what I've read, there was certainly no monolithic support for judicial supremacy. 

iii) As I discussed in another post, when the executive and/or legislative branches disregard judicial opinion, that has a potentially destabilizing effect. But the system only works so long as men of good will, in all three branches, play by the same rules. No system is self-correcting. Any accountability system can be corrupted. A system of checks and balances only works provided taht all the parties abide by the same rulebook. 

If one branch egregiously abuses it's authority, then that becomes a game of chicken: who blinks first? Within the system, you may end up with a stalemate. In that event, the citizenry is the final fallback. You have to go outside the system. 

"Steve's argument here is wrong. What Steve should say is that if the Supreme Court were consistently given an incontrovertible prerogative, they could avoid impeachment and ignore Constitutional amendments. But the current American system does not give them that level of incontrovertible prerogative."

I'm responding to TFan on his own grounds. If he says the judiciary is the absolute arbiter of what the Constitution means, then that grants the judiciary an incontrovertible prerogative to "interpret" out of existence any challenge to its hegemony. It can reinterpret an impeachment clause or reinterpret a new amendment to remove any check on its unbridled authority. TFan's position is self-contradictory. 

Finally, jurisprudence isn't static. A lot depends on what law students are taught. That can change from one generation to the next. If they are indoctrinated in judicial supremacy, many will unthinking accept that framework. But if that's challenged on historical grounds, opinion can shift back to an earlier (e.g. pre-Cooper v. Aaron) understanding.


  1. When faced with the objection that “the power of construing the laws according to the spirit of the Constitution will enable [the Supreme Court] to mold them into whatever shape it may think proper,” Alexander Hamilton found it inconceivable that such a thing could happen given the nature of the powers granted to the court:

    “In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the constitution….

    “It may in the last place be observed that the supposed danger of judiciary encroachments… is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen, but they can never be so extensive as to amount to an inconvenience…. This may be inferred with certainty from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.”

  2. Well argued, steve. I appreciate the thought and effort you've put into this subject recently.

  3. steve: //iii) As I discussed in another post, when the executive and/or legislative branches disregard judicial opinion, that has a potentially destabilizing effect. But the system only works so long as men of good will, in all three branches, play by the same rules. No system is self-correcting. Any accountability system can be corrupted. A system of checks and balances only works provided taht all the parties abide by the same rulebook. //(sic).

    BOOM! Ouch!!

    Amo 3:1 Hear this word that the LORD has spoken against you, O people of Israel, against the whole family that I brought up out of the land of Egypt:
    Amo 3:2 "You only have I known of all the families of the earth; therefore I will punish you for all your iniquities.
    Amo 3:3 "Do two walk together, unless they have agreed to meet?
    Amo 3:4 Does a lion roar in the forest, when he has no prey? Does a young lion cry out from his den, if he has taken nothing?
    Amo 3:5 Does a bird fall in a snare on the earth, when there is no trap for it? Does a snare spring up from the ground, when it has taken nothing?
    Amo 3:6 Is a trumpet blown in a city, and the people are not afraid? Does disaster come to a city, unless the LORD has done it?
    Amo 3:7 "For the Lord GOD does nothing without revealing his secret to his servants the prophets.
    Amo 3:8 The lion has roared; who will not fear? The Lord GOD has spoken; who can but prophesy?"

    It seems to me this country of the United States is growing more and more insane!

    I'm wondering if you can cite anytime the current President has acted with no action?

    I know the feeling as does the majority of voters who voted for Prop. 8 in California. So the people spoke loud and clear and yet there was no action taken to uphold the majority vote of the people. My sense is as long as the ruling elite class continue their lie at some point more and more people will side with them and then what? It leaves less and less moral character to oppose their evil intent.

    This exchange between you and TF has been very refreshing and at the same time maddening! :)