News Souter Confirms Republicans' Worst Fears

[mheslep]

Note stare decisis. In a common law system the judicial branch can, and does, in fact, create law.

Per any reading of common law or stare decisis definition with which I'm aware, 'create' is inaccurately used here. The judiciary recognizes past bodies of law, clarifies conflicts in the law, extends it even to previously unconsidered areas, but the judiciary always has to reach back for precedent in a common law system, thus it never creates, or should not.

 

[Cyrus]

Note stare decisis. In a common law system the judicial branch can, and does, in fact, create law.

It means let the decision stand, not 'create new law.'

 

[TheStatutoryApe]

You believe that somehow attaching a racist mindset to Scalia as a hypothetical or via a 'others might say' proxy will somehow allow you to escape scrutiny, responsibility, and support for that claim, making it all ok?

Reputation is subject in large part to repeated, unsubstantiated claims such as the above. You must see I could take the statement you made above and point it at you, substituting McCarthite perhaps for racist, pretending to hang it on "whether it is deserved or not" so I don't have to support it.

Seriously I have no idea what the **** you are on about. I never called him racist. I merely commented that people may view his opinion as racist if he were to agree that Plessy was technically a proper originalist interpretation. I note this because I think it makes it all the more unlikely that he would ever make any such comment even if he thinks it. I personally do not think it would make him racist to hold such an opinion. Only rather stubborn in his interpretative approach.

Per any reading of common law or stare decisis definition with which I'm aware, 'create' is inaccurately used here. The judiciary recognizes past bodies of law, clarifies conflicts in the law, extends it even to previously unconsidered areas, but the judiciary always has to reach back for precedent in a common law system, thus it never creates, or should not.

It means let the decision stand, not 'create new law.'

Common law court decisions create laws. They have through out history. It was a court decision that created the corporation, gave a right to abortion, gave a right to privacy, made Miranda warnings police procedure, ect ect ect...

The decision is supposed to follow logically from law and legal precedent, that does not mean that it is not creating law. You'll note Scalia says that there is no constitutional right to abortion, though case law says that there is. He says that there is no such thing as a right to privacy in the constitution, though case law says that there is.

You two and others may feel that this is not how common law ought to work and that's all well and good but absolutely irrelevant as it is in fact the manner in which courts work and have worked for quite some time.

 

[mheslep]

[...]Common law court decisions create laws. They have through out history. It was a court decision that created the corporation, gave a right to abortion, gave a right to privacy, made Miranda warnings police procedure, ect ect ect...

The decision is supposed to follow logically from law and legal precedent, that does not mean that it is not creating law. You'll note Scalia says that there is no constitutional right to abortion, though case law says that there is. He says that there is no such thing as a right to privacy in the constitution, though case law says that there is.

You two and others may feel that this is not how common law ought to work and that's all well and good but absolutely irrelevant as it is in fact the manner in which courts work and have worked for quite some time.

Maybe the disagreement is one of semantics. Yes of course courts produce 'case law', that's a truism, but I still think you go to far in saying courts 'create the law' without qualification. To my mind case law is merely a particular interpretation of existing common law. In Miranda, the Court found that the police violated Miranda's rights, especially his existing 5th amendment right to due process, and that to avoid violating the existing law in the future, if the police act to arrest someone, they must follow such and such a procedure, etc. The courts themselves emphasize this dependency by insisting on http://en.wikipedia.org/wiki/Standing_%28law%29" , that is a plaintiff has to show some complaint or violation of existing law to be heard. Otherwise, don't bother showing up no matter how grievous might be the harm. The federal government's current hesitation to bring any action against Arizona's immigration law no doubt reflects this problem: nobody has yet been impacted by the existing law, thus there is no standing, and the courts can create nothing, while Congress and the Az legislature are free to act at any instant.

 

[TheStatutoryApe]

Maybe the disagreement is one of semantics. Yes of course courts produce 'case law', that's a truism, but I still think you go to far in saying courts 'create the law' without qualification. To my mind case law is merely a particular interpretation of existing common law. In Miranda, the Court found that the police violated Miranda's rights, especially his existing 5th amendment right to due process, and that to avoid violating the existing law in the future, if the police act to arrest someone, they must follow such and such a procedure, etc. The courts themselves emphasize this dependency by insisting on http://en.wikipedia.org/wiki/Standing_%28law%29" , that is a plaintiff has to show some complaint or violation of existing law to be heard. Otherwise, don't bother showing up no matter how grievous might be the harm. The federal government's current hesitation to bring any action against Arizona's immigration law no doubt reflects this problem: nobody has yet been impacted by the existing law, thus there is no standing, and the courts can create nothing, while Congress and the Az legislature are free to act at any instant.

I of course do not mean that the courts have unlimited capacity to make laws as they see fit. Not even the legislature has that ability. But they create law within their own domain and capacity. They do not simply interpret existing law either. The courts will often take a case where there does not seem to be any applicable law and then borrow elements of other laws and other decisions on things not necessarily related in order to determine a logical outcome for the case in question. They essentially create the law that covers the particular circumstances where there were no such provisions before. But I suppose this depends on what exactly you mean by "existing law". The point is that specifically relevant law does not exist and based on knowledge of the law in general the judge/justice describes some legal opinion for such cases which will remain binding until such time as legislators decide to make applicable laws.

Miranda essentially says that if officers use a persons ignorance of their rights in order to illicit a confession the confession should not be admitted at trial. The fix, as we know, is that officers are to advise persons of their rights before interviewing them. Of course there is nothing in the constitution that would indicate that persons ought to be informed of their rights lest they throw them away. There is no law which supports this idea and I doubt that the framers, when drafting the 5th amendment, had figured on ignorant people who commit crimes being let go because of their ignorance.

If you read the latest decision being discussed in the Gun Laws thread Alito refers heavily to common law stretching back before the existence of the US. Our constitution did not create the right to bear arms, it only recognizes the preexisting common law right. In order to justify its relevance to hand guns Alito merely cites the fact that it is the preferred armament of choice for the purpose of self defense, no law what so ever. In order to justify application of the particular english common law to the US Alito references history, not laws. And finally, for the basis of the argument, Alito uses the Incorporation Doctrine which is the process by which the court actively defines "due process".

And yes the law in any particular circumstance does not come to fall into the domain of the court until such time as a valid case is presented to them. That is merely the mechanism of a common law justice system.


"Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things." - Alexander Hamilton

"The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power." - Alexander Hamilton

 

[Al68]

And finally, for the basis of the argument, Alito uses the Incorporation Doctrine which is the process by which the court actively defines "due process".

The incorporation doctrine is the court defining the word "liberty" in the due process clause, not defining "due process" itself. It is various rights (liberties) that are "incorporated" into the rights (liberties) that states cannot deprive people of (without due process). Due process itself is the process used to legally deprive people of liberty, ie fair trial, etc., and is not itself affected by the incorporation doctrine.

The decision in Plessy was a standard strict and conservative textualist approach leaning on originalism which was the norm for court decisions through most of the history of the US. According to the strict textualist approach if it is not specifically in the constitution it is not there at all. Since nothing in the constitution would define "equal" to the exclusion of "separate but equal" then "separate but equal" is not unconstitutional. And if we take a moment to look back at the intent of those persons who wrote and ratified the sections of the constitution (originalism) we are unlikely to find any reason to believe that it was intended white and black people should live in mixed society.

Am I misreading this? Wasn't a "mixed society" of free black and white people the whole point of the appropriate section (14th amendment)?

 

[TheStatutoryApe]

The incorporation doctrine is the court defining the word "liberty" in the due process clause, not defining "due process" itself. It is various rights (liberties) that are "incorporated" into the rights (liberties) that states cannot deprive people of (without due process). Due process itself is the process used to legally deprive people of liberty, ie fair trial, etc., and is not itself affected by the incorporation doctrine.

This is incorrect. See my post in the other thread.

Am I misreading this? Wasn't a "mixed society" of free black and white people the whole point of the appropriate section (14th amendment)?

Pardon my choice of words. By "living in mixed society" I mean living in the same neighbourhoods, belonging to the same clubs, frequenting the same establishments, ect. That this was not the actual manner of society at the time of the passage of the amendment and that the social distinctions remained intact in most places through out the country it would be hard to argue that the intention of the amendment was to grant "social equality" especially when it only specifically refers to "legal equality".

 

[BobG]

If you read the latest decision being discussed in the Gun Laws thread Alito refers heavily to common law stretching back before the existence of the US. Our constitution did not create the right to bear arms, it only recognizes the preexisting common law right. In order to justify its relevance to hand guns Alito merely cites the fact that it is the preferred armament of choice for the purpose of self defense, no law what so ever. In order to justify application of the particular english common law to the US Alito references history, not laws. And finally, for the basis of the argument, Alito uses the Incorporation Doctrine which is the process by which the court actively defines "due process".

And yes the law in any particular circumstance does not come to fall into the domain of the court until such time as a valid case is presented to them. That is merely the mechanism of a common law justice system.


"Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things." - Alexander Hamilton

"The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power." - Alexander Hamilton

Being general, one should expect cases where a court has to construct a ruling from what existing law there is. Hence the tradition of common law so similar cases draw similar conclusions (to provide some consistency) without taking as long.

The legislature passes laws that sound good in theory. The court takes on the real world application of those laws and reports back on how that law is actually working in practice. And then everyone decides if that's what they really hoped to accomplish with that law. Just because the court's determination of how that law should be handled in court within the context of all the other laws that may or may not apply can certainly make the law look very unfamiliar to the ones that wrote it.

I do like how Alito develops his opinions. With a few years to judge Bush's appointees, I've been a lot more impressed with Alito than Roberts. Considering the process that went into selecting appointees, was it that Bush's selections finally got so bad (Harriett Meiers) that he suddenly got a lot more serious about selecting based on qualification? Or just luck in that at least one of his three selections had to be a good choice?

I think Roberts's comments during his confirmation hearing about calling balls and strikes were slightly misguided (even if Roberts might actually come the closest to using this philosophy). Most of your Supreme Court justices seem to act more like a soccer referee.

Soccer probably has the shortest law book of any sport. That should make it easy for referees to remember the rules, at least, but it doesn't work that way. A lot of refereeing soccer depends on tradition (similar to case law) and, in the situations that aren't specifically covered, being able to recognize what's a fair result and knowing the laws well enough to back up what you'd actually decided on gut instinct.

Regardless of the rhetoric about judicial activism, original intent, etc, I think most of the justices decide what they believe is fair and then look for a rationale to back up their feelings - at least on the close decisions.

 

[mheslep]

[...]Of course there is nothing in the constitution that would indicate that persons ought to be informed of their rights lest they throw them away. There is no law which supports this idea and I doubt that the framers, when drafting the 5th amendment, had figured on ignorant people who commit crimes being let go because of their ignorance.

Yes of course there is something in the constitution and there is support for the idea! It is called the due process clause. Now, I don't know whether or not Miranda goes too far in an attempt to find a way to insure that due process, but the idea, the intent, is all about fulfilling the right instilled by that clause. Simply because the founders didn't imagine causes for Miranda, or could not imagine a modern hand gun, is completely irrelevant to the concept of original intent.

My objection, is to the argument, which I think you attempt in the last couple of posts, that the courts in fact creates law all the time, and that therefore, if they choose to conjure new law based only on their perceived needs of the current society with no root in the constitution, such as, say, a right to housing, then the courts have every right to do so, and, well, in fact they have been doing so without prior complaint. Yes there have been ample complaints, and No the courts have no such right.

BTW, I prefer Madison to Hamilton. http://oll.libertyfund.org/?option=...le=1910&chapter=112553&layout=html&Itemid=27"r, in response to the want to be monarchist Hamilton, looking for away escape the bounds of the constitution once he or someone of his mindset was in charge:

A people therefore, who are so happy as to possesses the inestimable blessing of a free and defined constitution, cannot be too watchful against the introduction, nor too critical in tracing the consequences, of new principles and new constructions, that may remove the landmarks of power.

 

[Al68]

Pardon my choice of words. By "living in mixed society" I mean living in the same neighbourhoods, belonging to the same clubs, frequenting the same establishments, ect. That this was not the actual manner of society at the time of the passage of the amendment and that the social distinctions remained intact in most places through out the country it would be hard to argue that the intention of the amendment was to grant "social equality" especially when it only specifically refers to "legal equality".

Sure that's true, since "social equality" relies on the acceptance of fellow citizens, not just government. But "separate but equal" wasn't "legal equality", either, if viewed as individual cases. Each government school considered whites and blacks not equal, even if the quality of each school were equal. Equal quality of schools, even if true, clearly doesn't constitute equal treatment of students by each school.

 

[TheStatutoryApe]

Yes of course there is something in the constitution and there is support for the idea! It is called the due process clause. Now, I don't know whether or not Miranda goes too far in an attempt to find a way to insure that due process, but the idea, the intent, is all about fulfilling the right instilled by that clause.

I am unaware of anything in the due process clause which would seem to indicate that one should be briefed on their rights before being interviewed by the police. I am sure that you could make the case that due process should include such protections but you would likely be straying from an originalist interpretation there. Do you have any source to indicate that the founders had conceived of such an idea? I mean it really has nothing to do with the times we live in at all, there are no new developments in technology that allow for this idea. They could easily have made a brief on one's rights a standard part of due process those couple hundred years ago if they had conceived of it as necessary to due process. I am personally unaware if there was any such practice at that time.

Simply because the founders didn't imagine causes for Miranda, or could not imagine a modern hand gun, is completely irrelevant to the concept of original intent.

It's actually quite relevant. In the case of hand guns, not so much. In the case of Miranda, quite definitely. The point of Originalism is that once you start conjecturing you have left solid ground. If you take the basic philosophical intent and then reapply it in a modern context then you are conjecturing and have no solid basis for your opinions. According to originalism one must consider the law only as conceived by the framers of said law. For instance the 15th and 19th amendments are entirely superfluous. Textually speaking there is absolutely no reason for them. But if we interpret the constitution through original intent we know that the framers had no intent of allowing black persons or women to vote. The 14th amendment should settle this as it generically refers to "persons", but apparently it was decided that it did not.

My objection, is to the argument, which I think you attempt in the last couple of posts, that the courts in fact creates law all the time, and that therefore, if they choose to conjure new law based only on their perceived needs of the current society with no root in the constitution, such as, say, a right to housing, then the courts have every right to do so, and, well, in fact they have been doing so without prior complaint. Yes there have been ample complaints, and No the courts have no such right.

I think that you rather misrepresent what I have said.

Sure that's true, since "social equality" relies on the acceptance of fellow citizens, not just government. But "separate but equal" wasn't "legal equality", either, if viewed as individual cases. Each government school considered whites and blacks not equal, even if the quality of each school were equal. Equal quality of schools, even if true, clearly doesn't constitute equal treatment of students by each school.

That was Brown where the previous decision in Plessy was overturned. Plessy had to do with separate rail cars and apparently the rail cars were qualitatively similar.