Res Ipsa, your thoughts please

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Manetho
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Re: Res Ipsa, your thoughts please

Post by Manetho »

Res Ipsa wrote:
Wed Jun 29, 2022 12:58 am
To be honest, my level of analysis is pretty much confined to “good idea or bad idea.”
I think we can refine this somewhat.

For comparison, the Thirteenth Amendment, and especially the Fourteenth and Fifteenth, were passed by means that were arguably extra-constitutional. The Thirteenth was passed while the Confederate states had excluded themselves from the ratification process by rebellion (though one could argue that applying the amendment to those states after they were reabsorbed into the Union was little different from applying extant amendments to newly incorporated territories). The Fourteenth and Fifteenth were passed while large segments of the population of former Confederate states had been temporarily excluded from voting by congressional fiat. Without those measures, these amendments would never have been ratified, but it's hard to object to those measures because the amendments made for a far more equitable legal system. The Thirteenth abolished slavery, the Fifteenth guaranteed voting rights to former slaves, and the Fourteenth — the most significant amendment ever passed — gave citizenship to everyone born on US soil, gave "equal protection of the laws" to everyone within US jurisdiction, and applied the protections in the Bill of Rights to state governments as well as the federal government. These amendments are as much a part of the bedrock of our legal system as the Bill of Rights itself, and they represented a massive increase in freedom for the people of the United States in general, not just former slaves. Their validity has never, as far as I am aware, been legally challenged, and while the white backlash to Reconstruction rendered them toothless in the late 19th century, they remained on the books and were finally fulfilled with the civil rights acts of the 1960s.

So to a certain extent, the ends can justify the means. A large segment of the white population of the South had to be temporarily deprived of their voting rights so that the rights of all Americans could be expanded permanently. The question is: what measures can we take to fix this problem that will stick over the long run?
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Re: Res Ipsa, your thoughts please

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I started this thread after seeing it discussed on Facebook. This was the argument that really got me thinking, and it is from an attorney:
No, that's not the point, and you're falling into the same liberal trap that's been around since the Warren court: relying on the Supreme Court to come up with policy you want, even if there's no constitutional basis. If judicial review isn't in the Constitution---and it isn't---but you want the Supreme Court to keep doing something it has no authority to do because you like the result, you have no grounds to complain when reactionaries do the same thing.

Roe v. Wade and Planned Parenthood v. Casey were themselves examples of statutes being invalidated by judicial review, and as has now been demonstrated (along with Miranda v. Arizona, Lawrence v. Texas, etc., etc., which are on the way to being overruled entirely) the Supreme Court can't be relied on to guarantee people's rights, because whether or not those rights are legally recognized depends on which justices happen to be on the Supreme Court at a given time. You demonstrably cannot count on the Supreme Court to vindicate progressive policies---not just recently, but consistently during the history of this country. For every Brown v. Board of Education, there are a lot more of Dred Scott, Plessy, Bowers v. Hardwick, and so on.

The 14th Amendment doesn't give the Supreme Court the job of enforcing equal protection of law and due process. Clause 5 of the 14th Amendment gives Congress the power to enforce those protections. That means rights like access to abortion, marriage equality, and so on should come from Congress, similar to how the Civil Rights Act, the Americans With Disabilities Act, the Fair Labor Standards Act, and other acts of Congress give substantive rights to Americans (although the asserted constitutional authority in these examples was the Commerce Clause, not the 14th Amendment).

Of course, this would require the Democratic Party or (gasp) a third party to actually do something to materially benefit people's lives instead of sleepwalking through politics and fundraising while relying on the courts to do the heavy lifting of policy. So it's understandable why shitlibs would be worried about this idea.

You're also ignoring that decisions like New York State Pistol and Rifle Assn. v. Bruen would have no meaning if everyone decided to stop recognizing an ultra vires power the Supreme Court arrogated to itself (the whole point of the Constitution is the branches of government don't get to decide for themselves what powers they have). Which means a gun control law New York has had in effect for 100 years would still be in effect, instead of subject to the happenstance of who dies or retires on the Supreme Court. Citizens United would also have no effect on campaign finance reform. And we wouldn't have six reactionary lawyers about to decide on behalf of the future of the human race the scientific question of whether industrial carbon dioxide emissions are a pollutant.
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Re: Res Ipsa, your thoughts please

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Manetho wrote:
Wed Jun 29, 2022 2:41 am
Res Ipsa wrote:
Wed Jun 29, 2022 12:58 am
To be honest, my level of analysis is pretty much confined to “good idea or bad idea.”
I think we can refine this somewhat.

For comparison, the Thirteenth Amendment, and especially the Fourteenth and Fifteenth, were passed by means that were arguably extra-constitutional. The Thirteenth was passed while the Confederate states had excluded themselves from the ratification process by rebellion (though one could argue that applying the amendment to those states after they were reabsorbed into the Union was little different from applying extant amendments to newly incorporated territories). The Fourteenth and Fifteenth were passed while large segments of the population of former Confederate states had been temporarily excluded from voting by congressional fiat. Without those measures, these amendments would never have been ratified, but it's hard to object to those measures because the amendments made for a far more equitable legal system. The Thirteenth abolished slavery, the Fifteenth guaranteed voting rights to former slaves, and the Fourteenth — the most significant amendment ever passed — gave citizenship to everyone born on US soil, gave "equal protection of the laws" to everyone within US jurisdiction, and applied the protections in the Bill of Rights to state governments as well as the federal government. These amendments are as much a part of the bedrock of our legal system as the Bill of Rights itself, and they represented a massive increase in freedom for the people of the United States in general, not just former slaves. Their validity has never, as far as I am aware, been legally challenged, and while the white backlash to Reconstruction rendered them toothless in the late 19th century, they remained on the books and were finally fulfilled with the civil rights acts of the 1960s.

So to a certain extent, the ends can justify the means. A large segment of the white population of the South had to be temporarily deprived of their voting rights so that the rights of all Americans could be expanded permanently. The question is: what measures can we take to fix this problem that will stick over the long run?
I think it’s hard to use measures taken in connection with the Civil War as precedent for anything today. It’s a special case. One can always argue that the ends justify the means. The argument works for autocrats Just as well as it works for democrats.

The problem, as I see it, is that the job of the legislative bodies to implement the will of the majority. If you ditch judicial review, who is responsible for protecting the minority from the tyranny of the majority? Have you met Wisconsin?

I’m not claiming courts are perfect at protecting rights, but if no person or organization is charged with protecting the rights of the minority, why should we expect rights to be protected?
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Re: Res Ipsa, your thoughts please

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If people were angels or governed by such...
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Re: Res Ipsa, your thoughts please

Post by honorentheos »

Vēritās wrote:
Wed Jun 29, 2022 2:52 am
I started this thread after seeing it discussed on Facebook. This was the argument that really got me thinking, and it is from an attorney:
No, that's not the point, and you're falling into the same liberal trap that's been around since the Warren court: relying on the Supreme Court to come up with policy you want, even if there's no constitutional basis. If judicial review isn't in the Constitution---and it isn't---but you want the Supreme Court to keep doing something it has no authority to do because you like the result, you have no grounds to complain when reactionaries do the same thing.

Roe v. Wade and Planned Parenthood v. Casey were themselves examples of statutes being invalidated by judicial review, and as has now been demonstrated (along with Miranda v. Arizona, Lawrence v. Texas, etc., etc., which are on the way to being overruled entirely) the Supreme Court can't be relied on to guarantee people's rights, because whether or not those rights are legally recognized depends on which justices happen to be on the Supreme Court at a given time. You demonstrably cannot count on the Supreme Court to vindicate progressive policies---not just recently, but consistently during the history of this country. For every Brown v. Board of Education, there are a lot more of Dred Scott, Plessy, Bowers v. Hardwick, and so on.

The 14th Amendment doesn't give the Supreme Court the job of enforcing equal protection of law and due process. Clause 5 of the 14th Amendment gives Congress the power to enforce those protections. That means rights like access to abortion, marriage equality, and so on should come from Congress, similar to how the Civil Rights Act, the Americans With Disabilities Act, the Fair Labor Standards Act, and other acts of Congress give substantive rights to Americans (although the asserted constitutional authority in these examples was the Commerce Clause, not the 14th Amendment).

Of course, this would require the Democratic Party or (gasp) a third party to actually do something to materially benefit people's lives instead of sleepwalking through politics and fundraising while relying on the courts to do the heavy lifting of policy. So it's understandable why shitlibs would be worried about this idea.

You're also ignoring that decisions like New York State Pistol and Rifle Assn. v. Bruen would have no meaning if everyone decided to stop recognizing an ultra vires power the Supreme Court arrogated to itself (the whole point of the Constitution is the branches of government don't get to decide for themselves what powers they have). Which means a gun control law New York has had in effect for 100 years would still be in effect, instead of subject to the happenstance of who dies or retires on the Supreme Court. Citizens United would also have no effect on campaign finance reform. And we wouldn't have six reactionary lawyers about to decide on behalf of the future of the human race the scientific question of whether industrial carbon dioxide emissions are a pollutant.
It's a good argument JR makes. Can't say I disagree. Legislation really should originate at the legislature. I think the argument still stands that judicial review isn't the issue here as much as abdication by the Legislative Branch of much of their job over the decades. There are reasons each new President can and does issue EO after EO in contradiction of the guy whose ass was warming the chair before them, too. The EPA ruling referenced in the comment is going to be a legit earthquake in that direction...
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Re: Res Ipsa, your thoughts please

Post by Res Ipsa »

honorentheos wrote:
Wed Jun 29, 2022 3:26 am
Vēritās wrote:
Wed Jun 29, 2022 2:52 am
I started this thread after seeing it discussed on Facebook. This was the argument that really got me thinking, and it is from an attorney:

It's a good argument JR makes. Can't say I disagree. Legislation really should originate at the legislature. I think the argument still stands that judicial review isn't the issue here as much as abdication by the Legislative Branch of much of their job over the decades. There are reasons each new President can and does issue EO after EO in contradiction of the guy whose ass was warming the chair before them, too. The EPA ruling referenced in the comment is going to be a legit earthquake in that direction...
I can say I disagree. Give Congress the unlimited discretion to decide how much power it has? What happened to no branch of government should should decide how much power it has? The argument refutes itself.

The reason that Presidents can pass all those EOs is that the executive completely turns over every four years or every eight years. And it’s purely political. Do you think the situation you describe will improve when there is no check on EOs? If you want Congress to do its job, how will giving them the power to delegate even more with no check in place get you there?

Do you think Congress will do a good job of staying within Constitutional boundaries when it is its own Judge? The same with the Executive branch.
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Re: Res Ipsa, your thoughts please

Post by Res Ipsa »

honorentheos wrote:
Wed Jun 29, 2022 3:26 am
Vēritās wrote:
Wed Jun 29, 2022 2:52 am
I started this thread after seeing it discussed on Facebook. This was the argument that really got me thinking, and it is from an attorney:

It's a good argument JR makes. Can't say I disagree. Legislation really should originate at the legislature. I think the argument still stands that judicial review isn't the issue here as much as abdication by the Legislative Branch of much of their job over the decades. There are reasons each new President can and does issue EO after EO in contradiction of the guy whose ass was warming the chair before them, too. The EPA ruling referenced in the comment is going to be a legit earthquake in that direction...
I can say I disagree. Give Congress the unlimited discretion to decide how much power it has? What happened to no branch of government should should decide how much power it has? The argument refutes itself.

The reason that Presidents can pass all those EOs is that the executive completely turns over every four years or every eight years. And it’s purely political. Do you think the situation you describe will improve when there is no check on EOs? If you want Congress to do its job, how will giving them the power to delegate even more with no check in place get you there?

Do you think Congress will do a good job of staying within Constitutional boundaries when it is its own Judge? The same with the Executive branch.
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Re: Res Ipsa, your thoughts please

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I think it is time for the board agitators to begin protesting the Monkeypox vaccine. Oh yeah, Britain should lease its battleships.
Last edited by Moksha on Wed Jun 29, 2022 4:31 am, edited 1 time in total.
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Re: Res Ipsa, your thoughts please

Post by honorentheos »

Res Ipsa wrote:
Wed Jun 29, 2022 3:44 am
honorentheos wrote:
Wed Jun 29, 2022 3:26 am

It's a good argument JR makes. Can't say I disagree. Legislation really should originate at the legislature. I think the argument still stands that judicial review isn't the issue here as much as abdication by the Legislative Branch of much of their job over the decades. There are reasons each new President can and does issue EO after EO in contradiction of the guy whose ass was warming the chair before them, too. The EPA ruling referenced in the comment is going to be a legit earthquake in that direction...
I can say I disagree. Give Congress the unlimited discretion to decide how much power it has? What happened to no branch of government should should decide how much power it has? The argument refutes itself.

The reason that Presidents can pass all those EOs is that the executive completely turns over every four years or every eight years. And it’s purely political. Do you think the situation you describe will improve when there is no check on EOs? If you want Congress to do its job, how will giving them the power to delegate even more with no check in place get you there?

Do you think Congress will do a good job of staying within Constitutional boundaries when it is its own Judge? The same with the Executive branch.
Do I think the argument is that Congress should be unaccountable nor should laws be subject to court review? No, I do not.

It's not historically accurate to say that the executive branch is just doing what it has always done with the use of EOs. The legislative branch has been pushing many responsibilities off into the executive where issues that could and should be decided by law are instead subject to whomever is the executive. By design perhaps. The Legislative Branch seems gunshy to take responsibility and legislate. A non-democrat example occured after the 2016 election when the GOP took control of the House, Senate, and White House. In front of the TV and on Twitter they boldly declared they would replace the ACA with something new and better. But in reality they had a difficult job that had political risks left and right. So what did they do? They punted to the court to try and have them do the dirty work and declare the ACA unconstitutional. When that failed they were unable to accomplish the repeal and replacement in no small degree due to too many people actually benefiting from the ACA. Accountability of Congress to their constituents proved the final check.

I strongly believe government dysfunction is more due to the Legislative Branch not doing the jobs they have per the Constitution more than there is a threat from the House and Senate becoming too powerful.
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Re: Res Ipsa, your thoughts please

Post by Manetho »

Res Ipsa wrote:
Wed Jun 29, 2022 3:12 am
I think it’s hard to use measures taken in connection with the Civil War as precedent for anything today. It’s a special case. One can always argue that the ends justify the means. The argument works for autocrats Just as well as it works for democrats.

The problem, as I see it, is that the job of the legislative bodies to implement the will of the majority. If you ditch judicial review, who is responsible for protecting the minority from the tyranny of the majority? Have you met Wisconsin?

I’m not claiming courts are perfect at protecting rights, but if no person or organization is charged with protecting the rights of the minority, why should we expect rights to be protected?
I'm not advocating anything nearly as extreme as what was done during the Civil War or Reconstruction. But nearly all of the options on the table require some type of breaking of norms that elected officials, or the public, are attached to. For one thing, nearly all of them would require eliminating the Senate filibuster, or at least weakening it enough to get something passed that Republicans are bound to oppose.

The least radical solution to the court problem is to try to ride it out — maintain a Democratic hold on Congress and the presidency long enough to replace some of the right-wing judges, as in the Roosevelt and Truman administrations. But, of course, that's extremely difficult to do. In particular, the urban-versus-rural nature of the current split between the parties, combined with the wild population imbalance in the Senate, may soon make it virtually impossible for Democrats to hold the Senate unless new states are added. Adding states for the sake of political advantage probably counts as norm-breaking, even though it would be correcting a wild imbalance, the same as the imbalance on the court itself, and even though Washington DC wants congressional representation. There's also the problem of voter suppression, which, again, could be addressed with legislation but requires weakening the filibuster.

The next-most radical option is adding more circuit courts. I've heard that the circuit courts are overworked as it is; dividing up their workload would provide an opportunity to appoint more non-right-wing judges. It wouldn't solve the Supreme Court problem, but it might have marginal benefits.

The next option after that is expanding the Supreme Court itself. This isn't necessarily more radical than adding more circuit courts, but it's a more powerful tool because the Supreme Court has the final say. It's also a more controversial tool because FDR's court-expansion scheme is widely regarded as overstepping his boundaries.

The problem with both varieties of court expansion is that Republicans will retaliate if they ever regain power, but frankly, if the Republican Party in its current authoritarian form regains power, I wouldn't expect our democracy to last any longer than the court majority.

After that comes the abandonment of judicial review, which I agree is crazy.
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