Is Justice Antonin Scalia a Judicial Activist?

In the latest edition of the Cato Institute's excellent Cato Unbound, Robert Levy has a fascinating article on the future after D.C. v. Heller. It's a great piece, examining both the likely fate of various gun control laws, the legal and political ramifications of the ruling, and the perennial question of whether the Court's actions count as judicial activism or judicial restraint. As Levy notes, Justice John Paul Stevens chastised Scalia in his dissent for entering the "political thicket" of gun control, the sort of charge normally made (at least these days) by conservatives against liberal judges. Is Stevens right? Did Scalia arrogantly and inappropriately substitute his views for those of the people of Washington, D.C. (via their local officials)? Here's Levy:

Judges have a responsibility to invalidate all laws that do not conform to the Constitution. Courts would be derelict if they endorsed unconstitutional acts merely because our elected representatives passed them. In that respect, overturning the D.C. gun ban was a clear example of principled judicial engagement.

That's the crucial point: The Court has a duty to nullify unconstitutional laws, regardless of what the majority has to say about it.

Whole thing here.

Comments

R C Dean | July 14, 2008, 6:13pm | #

I think the term "judicial activism" is very unfortunate - as noted, sometimes judges are required to take action against unconstitutional laws.

The real issue, I think is with judges taking on the powers/duties of other branches - "legislating from the bench," so to speak.

Even assuming, arguendo, that the Constitution prohibits limiting marriage to heterosexual couples, a properly judicial approach is to strike the laws that prevent this from the books. Judges do not put new laws on the books.

I'm still not sure what the CA Supreme Court did, but the way California marriage law was drafted, I don't see how they could "legalize" gay marriage from the bench. There wasn't a nice, clean, single provision barring gay marriage in an otherwise genderless statute. The only way to legalize gay marriage was to rewrite the statute, which is not a judicial function. I think what the CA court did was "legislating from the bench."

They should have stricken the whole thing, which would mean that straight couples couldn't get married either until a new, gender-neutral law was passer, and let the legislature do its job of passing such a law. Sure, there would have been a big political kerfuffle, but, from a judicial/Constitutional perspective, so what?

Neu Mejican | July 14, 2008, 6:25pm | #

I'm still not sure what the CA Supreme Court did, but the way California marriage law was drafted, I don't see how they could "legalize" gay marriage from the bench.

You take a provision/law away that says marriage is limited to man and woman and you have a marriage law that allows man/man, woman/woman marriages.

No new law is needed.

What's the problem?

Neu Mejican | July 14, 2008, 6:32pm | #

E.G.,

FAMILY.CODE SECTION 300-310

300. (a) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing
with Section 500).
(b) For purposes of this part, the document issued by the county clerk is a marriage license until it is registered with the county recorder, at which time the license becomes a marriage certificate.

301. An unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older, and not otherwise disqualified, are capable of consenting to and consummating marriage.

302. (a) An unmarried male or female under the age of 18 years is capable of consenting to and consummating marriage upon obtaining a
court order granting permission to the underage person or persons to marry.
(b) The court order and written consent of the parents of each underage person, or of one of the parents or the guardian of each underage person shall be filed with the clerk of the court, and a certified copy of the order shall be presented to the county clerk at
the time the marriage license is issued.


Becomes

300. (a) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. ...

MP | July 14, 2008, 6:43pm | #

Neu,

That's what RC is saying. You have to strike and rewrite, instead of simply striking. Simply striking is the legitimate extent of judicial authority. Inserting new language goes beyond and thus becomes "legislating from the bench".

If you simply strike in this case, you've completely eliminated the boundaries to which the marriage contract is held.

ClubMedSux | July 14, 2008, 6:49pm | #

Just for the record, there's no one agreed-upon definition of "judicial activism." If you go by the definition in Black's Law Dictionary, striking down a law as unconstitutional because you believe it violates the Constitution is not judicial activism. Striking down a law because you don't like it, and then justifying your ruling by inferring a right in the Constitution that isn't actually there, on the other hand, would be judicial activism.

♪ | July 14, 2008, 6:50pm | #

RC Dean: They should have stricken the whole thing, which would mean that straight couples couldn't get married either until a new, gender-neutral law was passer, and let the legislature do its job of passing such a law.

So what would that have done, invalidate every marriage in California since it became a state in 1850?

Paul | July 14, 2008, 6:51pm | #

Is Justice Antonin Scalia a Judicial Activist?

Yes...no... I mean, sometimes. Sounds like all the judges at some point, don't it?

We also need to explore (or revisit) what Judicial Activism means. We know for a fact that originalism can be seen as 'activism'. Take the first amendment, for instance...

♪ | July 14, 2008, 6:53pm | #

The Court has a duty to nullify unconstitutional laws, regardless of what the majority has to say about it.

That is never "judicial activism."

Brandybuck | July 14, 2008, 6:58pm | #

If you simply strike in this case, you've completely eliminated the boundaries to which the marriage contract is held.

Correct. If you just struck out those six words, it would allow group marriages, which the gay community has expressly said it does not support. The gay marriage movement wasn't about equal treatment, it was about a specific narrow inclusion. It was like if the civil rights act only applied to blacks and not hispanics.

IMHO, the extent of government's role in marriage is to recognize it as a form of contract and legal partnership, with no special privileges.

Elemenope | July 14, 2008, 6:58pm | #

Apparently, judicial activism only occurs if the case has to do with fetuses.

Or so I hear.

Paul | July 14, 2008, 6:58pm | #

Neu, I don't know if judges can strike the words from a law with which they're uncomfortable. Imagine the havoc that could be created by a certain nine individuals if they started striking words from amendments 1-10. My understanding is that judges interpret the law as it was written, and strike the whole law if it's found unconstitutional.

If a law is written that makes provisions and limits, striking the provisions and limits can have radical consequences for the applicability of the law.

And now, for your dining and dancing pleasure:

301. An unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older, and not otherwise disqualified, are capable of consenting to and consummating marriage.

Neu Mejican | July 14, 2008, 6:59pm | #

Neu,

That's what RC is saying. You have to strike and rewrite, instead of simply striking....

Why do you have to re-write beyond striking?

This:

"Marriage is a personal relation arising out of a civil contract to which the consent of the parties capable of making that contract is necessary."

Is perfectly coherent with the offending clause removed. Nothing else in the law needs to change.

Elemenope | July 14, 2008, 7:00pm | #

IMHO, the extent of government's role in marriage is to recognize it as a form of contract and legal partnership, with no special privileges.

I think you'll find many here, including me, who agree with you. However, isn't a hallmark of responsible conservatism *incremental* changes?

I mean, you can't go from "one man - one woman w/benefits" to "anything goes and go fuck yourself" in one stroke without some nasty and unnecessary social upheaval, no?

Neu Mejican | July 14, 2008, 7:10pm | #

Paul,

Neu, I don't know if judges can strike the words from a law with which they're uncomfortable.

Not uncomfortable, but unconstitutional. There is a meaningful difference.

Imagine the havoc that could be created by a certain nine individuals if they started striking words from amendments 1-10.

It is hard to find the constitution unconstitutional.

My understanding is that judges interpret the law as it was written, and strike the whole law if it's found unconstitutional.

At which point the state would revert to the previous law that does not contain the offending clause with the additional information that it does not prohibit man/man nor woman/woman marriages.

Same effect.

♪ | July 14, 2008, 7:14pm | #

A good indicator that something is constitutional is if something has been done throughout the lifetime of said constitution without comment and with complete lack of controversy.

i.e.

It is a good indicator that marriage laws excluding same sex couples are constitutional because marriage laws have always excluded same sex couples throughout the lifetime of all US constitutions without controversy and without comment. duh.

DannyK | July 14, 2008, 7:17pm | #

The dividing line is simple:

When you like it, it's "Principled Judicial Engagement." When you don't like it, it's "Judicial Activism."

Paul | July 14, 2008, 7:22pm | #

Not uncomfortable, but unconstitutional. There is a meaningful difference.

You say tomaatow, I say tomaytow...

Imagine the havoc that could be created by a certain nine individuals if they started striking words from amendments 1-10.

It is hard to find the constitution unconstitutional.

I was merely trying to illustrate a point. Omitting words out of a given provision of law because five judges find it unconstitutional doesn't seem like judicial activism? I really don't believe it's the purview of judges to make laws constitutional by changing them. Either by addition or omission.

If this were the case, we'd just make a new process. Legislators send the law to the court. The court takes a red pen to the law, omitting the unconstitutional words and language, then sends the law back to the legislature and a final vote is made. You can't possibly believe that the surgical elimination of words from a law, not the elimination of a provision, but words within the provision isn't a scary form of activism?

I guess the whole point here is that surgically striking words out of an existing provision is a form of rewriting. Michael Moore made a whole career out of it.

liberty mike | July 14, 2008, 7:26pm | #

Elemenope-7:00 pm

To quote a phrase, "with all deliberate speed."

Neu Mejican | July 14, 2008, 7:32pm | #

If this were the case, we'd just make a new process. Legislators send the law to the court. The court takes a red pen to the law, omitting the unconstitutional words and language, then sends the law back to the legislature and a final vote is made.

Why not have a screening process to reduce the work load on the judges...something like, it is assumed the law is constitutional until someone makes a claim in court to the contrary...then we could have some sort of due process to make a decision. We could even have a supreme arbiter in each state and one for the federal level.

You can't possibly believe that the surgical elimination of words from a law, not the elimination of a provision, but words within the provision isn't a scary form of activism?

It doesn't scare me.
In the example I gave eliminating a couple of words effectively got rid of the provision that was unconstitutional in California.

Like I mentioned up above...striking the whole law in this case would have meant (did mean?) reverting to the old law that didn't contain the gender-based definition, with the additional text from the decision making it clear that no gender-based definition would be constitutional.

Robert | July 14, 2008, 7:37pm | #

Interesting that Calif.'s family relations law purports to define marriage; NY's, for instance, doesn't. But I think that in practice sec. 300 doesn't do it, because "a personal relation arising out of a civil contract" would allow marriages of convenience wherein the parties wouldn't even have to have met, let alone live together.

Robert | July 14, 2008, 7:42pm | #

striking the whole law in this case would have meant (did mean?) reverting to the old law that didn't contain the gender-based definition,

I bet the old law was like NY's, purporting only to regulate marriage, not define it. In which case marriage is a question of fact, not law, and same-sex marriage probably is still invalid because an inquiry into the fact of what the relevant words mean (spouse, married, etc.) in any case where the question of someone's being married is disputed reveals that the customary use of the terms admits of only opposite sex marriages.

Paul | July 14, 2008, 7:46pm | #

Why not have a screening process to reduce the work load on the judges...something like, it is assumed the law is constitutional until someone makes a claim in court to the contrary...

Interesting idea. Except I have a prediction about how this process would end up. You'd have a bunch of unconstitutional laws on the books that when finally challenged, get wishy-washy or watered down decisions because the judge finds that "people have ordered their lives" around the law.

I wonder if any controversial decisions would ever be made on this premise?

Elemenope | July 14, 2008, 7:47pm | #

To quote a phrase, "with all deliberate speed."

Very cute, but that was a culmination of one hundred and fifty years of bloody social convalescence. That change came slowly *and* painfully.

A good indicator that something is constitutional is if something has been done throughout the lifetime of said constitution without comment and with complete lack of controversy.

i.e.

It is a good indicator that marriage laws excluding same sex couples are constitutional because marriage laws have always excluded same sex couples throughout the lifetime of all US constitutions without controversy and without comment. duh.

That is quite possible the most retarded thing I've ever read. Like someone ate Burke for breakfast and then shat him out in a comment field.

Even if you are right, and you aren't, the principle has been challenged before, by da Mormons, if I'm not mistaken. So it did *not* go without comment or without question.

Neu Mejican | July 14, 2008, 7:48pm | #

same-sex marriage probably is still invalid because an inquiry into the fact of what the relevant words mean (spouse, married, etc.) in any case where the question of someone's being married is disputed reveals that the customary use of the terms admits of only opposite sex marriages.

These controversies arise because the meaning of terms like "spouse" are plastic overtime and can encompass new uses.

People are married to the job, for instance.
And spouse is a gender neutral term meaning partner in marriage. In the case of someone married to their job, their job is their spouse.

J sub D | July 14, 2008, 7:49pm | #

Apparently, judicial activism only occurs if the case has to do with fetuses.

Or so I hear.

You heard wrong. School Busing.

Hypothetical Hermaphrodite | July 14, 2008, 7:50pm | #

"anything goes and go fuck yourself"

Don't mind if I do!

(if one could fuck oneself, I would think that this marriage thing would be a moot issue)

Neu Mejican | July 14, 2008, 7:52pm | #

Except I have a prediction about how this process would end up.

Imperfect, perhaps?

Got a better way to go?

MJ | July 14, 2008, 7:52pm | #

"It is hard to find the constitution unconstitutional."


But the lefty judicial activists do try, i.e. capital punishment.

Neu Mejican | July 14, 2008, 7:56pm | #

But the lefty judicial activists do try, i.e. capital punishment.

Really.
Only the lefty judicial activists?
What do the righty judicial activists try?

liberty mike | July 14, 2008, 7:57pm | #

Elemenope-

Touche. Just because I see most, though not all, rights issues as balck and white, does not mean that I do not, or am incapable of, recognizing and, in some instances, aprreciating, nuance, degrees, gradations, etc. Obviously, if its May 17, 1954, and you are Thurgood Marshall or A. Phillip Randolph or Martin Luther King, Sr., "with all deliberate speed" might be harder to accept-notwithstanding the monumental victory.

Paul | July 14, 2008, 8:00pm | #

It doesn't scare me.
In the example I gave eliminating a couple of words effectively got rid of the provision that was unconstitutional in California.

I wonder if one could get 5 property rights "extremist" judges to consider this omission:

Wetland vegetation class: a wetland community classified by its vegetation including aquatic bed, emergent, forested and shrub-scrub. To constitute a separate wetland vegetation class, the vegetation must be at least partially rooted within the wetland and must occupy the uppermost stratum of a contiguous area or comprise at least thirty percent areal coverage of the entire wetland.

Imperfect, perhaps?

Got a better way to go?

Yes, I was actually not being snarky. If we agree (which we don't, but if we did) that words from a given provision can be surgically removed to make a law constitutional, it seems that my suggestion above would actually work. Judges would become part of process before we had to order our lives around some of this crap. The legislative process would slow down, and we could finally admit to ourselves that the judicial branch would have to maintain a constituency just like regular politicians do. I think it would force everyone involved to really think about what laws they pass. Quit shooting from the hip and hope the law "takes" root before anyone notices.

Neu Mejican | July 14, 2008, 8:05pm | #

it seems that my suggestion above would actually work

Legislatures typically already have a process like you suggest, they just don't call the lawyers that vet the wording of the law "judges."

It seems an important feature of checks and balances that the various branch have distinct roles in the process.

Neu Mejican | July 14, 2008, 8:07pm | #

the vegetation must be at least partially rooted within the wetland and must occupy the uppermost stratum of a contiguous area or comprise at least thirty percent areal coverage of the entire wetland.

I would be interested in the constitutional argument here.

Details matter.

Robert | July 14, 2008, 8:12pm | #

"People are married to the job, for instance."

Not in a serious legal case where the question of whether someone is married is at issue, no. Metaphor doesn't count. Otherwise imagine how many people could be convicted for "killing" someone, etc.

Neu Mejican | July 14, 2008, 8:13pm | #

Robert,

You're killing me.

The point is that the definition, even a legal definition, is not a fixed entity.

Neu Mejican | July 14, 2008, 8:15pm | #

in any case where the question of someone's being married is disputed reveals that the customary use of the terms admits of only opposite sex marriages.

The customary use of the term is changing.
This is the motivation behind laws trying to define the term explicitly.

It's like trying to pin down mercury, however.

Neu Mejican | July 14, 2008, 8:16pm | #

Metaphor doesn't count

In the world of word meaning...metaphor is all that counts. Literal meaning is, literally, an illusion.

liberty mike | July 14, 2008, 8:19pm | #

Elemenope-

A classic dilemna presents itself in the 6h amendment right to a fair trial vs. the first amendment open access/freedom of the press cases.

Both are legitimate. constitutional rights. Depending on the facts, I could go either way. Generally, unless it is a public official, I generally favor one's 6h amendment rights to a fair trial over the press' right of access to it.

Elemenope | July 14, 2008, 8:21pm | #

Obviously, if its May 17, 1954, and you are Thurgood Marshall or A. Phillip Randolph or Martin Luther King, Sr., "with all deliberate speed" might be harder to accept-notwithstanding the monumental victory.

Oh, I agree. And pointedly, I've never here claimed to be a "conservative" in the sense of incremental change; sometimes it is appropriate, and sometimes it isn't. Sometimes the change is worth the cost, regardless of the fallout, in the long run.

It's is particularly interesting in this case (school desegregation) because it did come in two parts. The first was "with all deliberate speed" which gave everyone a year or so to let the enormity of it sink in, and also give the states in error a chance to comply willingly.

The second part was because they didn't. I think if they had tried it all in one stroke, it would have gone poorly...more poorly than it did. And desegregation as a principle might very well have not survived it.

I was just pointing out that people often are too cavalier about change and don't think much of the unintended consequences that inevitably follow.

You heard wrong. School Busing.

Yeah, I forgot that when people are taking time off from saving black and white fetuses, they are trying like hell to make sure they don't grow up together.

Elemenope | July 14, 2008, 8:22pm | #

Elemenope-

A classic dilemna presents itself in the 6h amendment right to a fair trial vs. the first amendment open access/freedom of the press cases.

Both are legitimate. constitutional rights. Depending on the facts, I could go either way. Generally, unless it is a public official, I generally favor one's 6h amendment rights to a fair trial over the press' right of access to it.

I have a hard time seeing how these two conflict at all. Are you saying that when the press is present a fair trial can't be had?

Digistar | July 14, 2008, 8:30pm | #

It's "judicial activism" when a judge does something you don't like.

MP | July 14, 2008, 9:08pm | #

Neu,

You never responded to Brandybuck's point, which I was implying originally, in that simply striking the language legalizes polygamy.

(It's interesting to remember though that the law is written with a lot of assumed definitions. For example, NH law, which I'm more familiar with, liberally uses the terms "bride" and "groom", never explicitly defining either. It also does not define "Marriage" explicitly. It only says what type of marriages are prohibited. NH dodged a re-write by enacting Civil Unions. Of course, the law needs to assume some definitions, else it would have to reprint the dictionary to exist. Thus, again, Neu's suggestion fall victim to the practical reality of the assumed definition of marriage. If you take out the explicit definition, what are you left with? Of course, a purpose of the court is to give clarity to the definition of something in law, but again, you enter into "re-write" territory by doing so.)

MP | July 14, 2008, 9:14pm | #

You heard wrong. School Busing.

Busing is the second worst example of legislating from the bench. The worst, again related to public schools, is defining "adequacy", which can have courts setting school budgets, or even worse, micromanaging school curriculum, which far exceeds the classical view of the role of the judiciary.

Elemenope | July 14, 2008, 9:27pm | #

Busing is the second worst example of legislating from the bench. The worst, again related to public schools, is defining "adequacy", which can have courts setting school budgets, or even worse, micromanaging school curriculum, which far exceeds the classical view of the role of the judiciary.

Really, Are you serious? Second worst judicial activism is fucking *busing*?

p.s. if by micromanaging school curricula you mean slapping creationism out of the classroom with a footed fish, forgive me if I don't cry too hard.

MP | July 14, 2008, 10:05pm | #

Elemenope said:

Really, Are you serious? Second worst judicial activism is fucking *busing*?

Yes. And I didn't say "judicial activism" (a meaningless term, as others have stated). I said "legislating from the bench". With busing, the courts implemented a specific policy action to overcome a perceived injustice. They effectively took control of the transportation infrastructure of the public school system. They took over the functions of both the executive and the legislature and setup their own administrative dictatorship.

Feel free to offer up better examples.

p.s. if by micromanaging school curricula you mean slapping creationism out of the classroom with a footed fish, forgive me if I don't cry too hard.

No, although after reviewing the literature again, I couldn't find any specific examples, so I was off base. Apparently, I was recalling how curriculum factored in the the adequacy equation for defining costs.

But I still stand by my assertion that adequacy suits are the pinnacle of legislating from the bench. For a good primer, one can start here:

contemporary school-finance adequacy litigation goes far beyond seeking equity for the educationally disadvantaged. The movement is becoming a self-serving cause whereby plaintiffs have gained relatively uncontested judicial access to the policy process. Indeed, unsubstantiated claims and unreasonable requests contained in costing-out studies commissioned by plaintiffs have successfully circumvented democratic executive and legislative funding dynamics.

Paul | July 15, 2008, 1:49am | #

I would be interested in the constitutional argument here.

Details matter.

Property rights.

James Anderson Merritt | July 15, 2008, 3:28am | #

"If you just struck out those six words, it would allow group marriages, which the gay community has expressly said it does not support."

Do they really disavow group marriage? On what grounds? Please don't say because it is "unnatural" or "untraditional"!

James Anderson Merritt | July 15, 2008, 3:29am | #

Sorry ... that should be "nontraditional." Cut-n-paste strikes again.

Elemenope | July 15, 2008, 8:12am | #

Do they really disavow group marriage? On what grounds? Please don't say because it is "unnatural" or "untraditional"!

Yes they really do, and it has nothing to do with principled argument. It has to do with political survival for their issue; if someone could raise the bugaboo of group marriages as directly arising from gay marriages, there would be mass hysteria (dogs & cats living together, etc.).

Thus, they poop on their marriage-liberalizing fellow travelers on the grounds that red-blooded (i.e. bigoted) Americans find them even weirder than gays in wedlock.

Other Matt | July 15, 2008, 9:13am | #

It has to do with political survival for their issue; if someone could raise the bugaboo of group marriages as directly arising from gay marriages, there would be mass hysteria (dogs & cats living together, etc.).


In other words, let's not fully illuminate how ridiculous the law is, we'll just play peek a boo with it and hold it in a dim light, just enough light to get rid of what we don't want, and fuck all y'all cause we gots ours.

That pretty much sum it up? It's american politics at its best.

Elemenope | July 15, 2008, 9:25am | #

Other Matt --

Yes it does, and it has nothing to do with *American* politics, but rather politics in general. In my albeit limited direct experience with politics, it is crucial not to be associated with a group that generates reflexive revulsion, or if that is not possible, to at least be able to point to a group that generates more revulsion than yours.

Like Libertarians: At least we aren't truthers!

Oh, wait...

duck duck goose | July 15, 2008, 9:37am | #

That's the crucial point: The Court has a duty to nullify unconstitutional laws, regardless of what the majority has to say about it.

Seriously? Are you trying to make this argument with a straight face? That it's not judicial activism to nullify a law that is unconstitutional?

Courts can nullify a law only if that law is unconstitutional. It's not as if the court can willy-nilly nullify a law just for the heck of it. If you follow this argument, then there is, by definition, no such thing as judicial activism.

What Cato means to say is that, if you agree with the court, that means the court is merely following its constitutional duty to strike down unconstitutional laws. If, however, you disagree, then it is judicial activism.

Paulidan | July 15, 2008, 9:38am | #

There would be no point to the Constitution if the majority could overturn it...

The difference between judicial activism and restraint has nothing to do with the principle of striking unconstitutional law, a simple consequence of having a Constitution to begin with, but rather whether judges should create new rights not in the Constitution under it's aegis.

For instance, you could read the document a thousand times and not find anything about abortion but it's not to much a stretch to claim the documents protects a certain "right of the people to keep and bear arms."

R C Dean | July 15, 2008, 9:42am | #

So what would that have done, invalidate every marriage in California since it became a state in 1850?

Not necessarily. Judges actually have a lot of discretion in whether they overturn retroactively (back to 1850 or whenever) or prospectively (from the date of the decision forward). In this case, I think they'd go prospective, given the very high degree of justified reliance on the statutes.

NM sez:

This:

"Marriage is a personal relation arising out of a civil contract to which the consent of the parties capable of making that contract is necessary."

Is perfectly coherent with the offending clause removed. Nothing else in the law needs to change.

While true, its still an amendment of a statute, not striking the statute. I'm uncomfortable with that kind of judicial power; it gives judges distinctly legislative authority.

Not only that, but there are at least a half dozen other similar references to "a man and a woman" in the California marriage code that would also have to be stricken, and without going through the whole code I couldn't say if simply deletion would work in every case.

And, of course, as noted, the judicially amended statute you propose would allow polygamy, which would mean that the judicial amendment goes considerably beyond the scope of the constitutional decision just made by the court. That, too, is "judicial legislation" only without the benefit of a constitutional basis, and an effect nobody is attributing to the decision.

Sorry, NM, but I just don't think your "partial line item veto" power for judges quite flies.

MP | July 15, 2008, 10:14am | #

R C Dean said:

While true, its still an amendment of a statute, not striking the statute. I'm uncomfortable with that kind of judicial power; it gives judges distinctly legislative authority.

SCOTUS does partial strikes of statutes all the time. Don't they even strike clauses? I do agree that the more discrete the strike, particularly when we're talking about words/phrases vs. clauses/paragraphs, that you're then in "judicial legislation" territory. But the line between clauses and phrases is somewhat blurry.

Do you reject the SCOTUS's ability to do partial strikes of legislation?

Elemenope | July 15, 2008, 10:21am | #

The difference between judicial activism and restraint has nothing to do with the principle of striking unconstitutional law, a simple consequence of having a Constitution to begin with, but rather whether judges should create new rights not in the Constitution under it's aegis.

There is no such creature; read the ninth and tenth amendments again, slowly and carefully.

Neu Mejican | July 15, 2008, 11:14am | #

Why is everyone here so worried about polygamy?

If the Man & Woman phrase is removed and the language allows for group marriages, then a group will attempt to get married, the state will refuse to give them a license (only two places for people to sign I am gonna bet), and that will end up in court. The court will then decide whether the revised law implies the right to group marriages. Given the history of that issue, they have some precedent to fall back on to say that polygamy is not covered...or they will allow polygamy.

This is an iterative process.

MP,
That was my impression re: SCOTUS.
I am not a legal scholar, so maybe I am incorrect, but no one here has given me a logical reason to assume that partial striking is equivalent to "re-writing."

If simple striking makes the law incoherent, then the judges can reject whole-cloth. But there doesn't seem to be any constitutional principle that forbids line-item rulings.

IMHO

liberty mike | July 15, 2008, 11:30am | #

Elemenope-

Say a guy is arrested for trespass and disturbing the peace at a police station where the guy had gone to speak to the chief in connection with renewing his firearms license. On his license renewal form the guy types in things like "if you interfer with my exercise of my 2nd amendment rights I will sue you under 42 USC 1983." The chief tells him to "get the fuck out of here and don't come back until you fill out the fuckin form the right fuckin' way."

On the way out of the police station the guy goes to the dispatcher to report a violation of his civil rights when another cop decides to arrest him.

The guy has no record. In fact. let's say he was an honorably discharged army captain who happened to be a firearms instructor. Eventually, his lawyer gets his case dismissed.

Then, his lawyer files a motion to expunge the arrest records. This, I concede, is not a 6th amendment vs. 1st amendment clash-but it is still, in my view, a rights clash-I know that you are not a fan of the 9th, but would you concede that individuals do have some privacy rights? The press may argue that its 1st amendment right of open access might be impinged.

What say you?

Elemenope | July 15, 2008, 11:49am | #

What say you?

Before I dive in, I want to clear up my position as to the 9th Amendment. I think that the 9th (and 10th) Amendments were poorly thought out codas to the enumerated rights that proceeded them. The ideas behind them are sound (i.e. try to interpret things as broadly as possible where freedoms are concerned, and this is not an exhaustive list), but under a system of Common Law they cash out rather poorly in the details.

I do believe that privacy is important enough and controversial enough on the periphery (due to many complicated issues) to require a clearly-worded amendment in order to claim protections beyond those afforded in the 4th (which are, as far as it goes, fairly expansive). Until Congress and/or the States get around to it, I think all privacy claims must be rooted in and delimited by the 4th Amendment.

The mere fact of indictment, I think, is a public fact unnecessary to protect in the name of privacy. Surely it gets uncomfortable when one turns to issues of sexual abuse, but that speaks more directly to our neurotic society than to a defect in the network of rights and justice that we have. On balance, it is nearly always better to shine a little light into a due process proceeding rather than to shroud it away from the public eye. I believe one of the other amendments speaks directly to the notion of a speedy and PUBLIC trial.

If the arrest was in error due to malice I see no problem with a motion to expunge, nor any conflict with other rights.

R C Dean | July 15, 2008, 11:53am | #

SCOTUS does partial strikes of statutes all the time. Don't they even strike clauses?

As NM's partial strike of the CA marriage statute above illustrates, mere deletion of clauses can create unintended consequences. The CA Court definitely did not find a constitutional right to polygamy, but its hard to see how to avoid that result if you just start striking words from the statute.

For that reason, I'm not sure exactly how the SCOTUS deals with unconstitutional laws, at the technical level. Just how much do they strike, and how? I really don't know, but I suspect they limit themselves to pronouncements that the law, as applied is inconstitutional, and leave the editing to others. There's a tenure piece in all this for a law professor somewhere.

The court will then decide whether the revised law implies the right to group marriages. Given the history of that issue, they have some precedent to fall back on to say that polygamy is not covered...or they will allow polygamy.

NM, you are still assuming the court has the power to actually revise a law. That's a legislative power, not a judicial one. The judicial review power is the power to invalidate an unconstitutional law, not to rewrite it so it is constitutional.

By analogy, the Executive has the power to veto a law that he thinks is unconstitutional, but not the power to rewrite it to make it constitutional. Writing statutes is the sole province of the legislature.

And there's no way the CA courts can say that the statute, as judicial revised by striking selected words, allows gay marriage but not polygamy without an even more extensive re-write.

Neu Mejican | July 15, 2008, 12:08pm | #

NM, you are still assuming the court has the power to actually revise a law.

I am assuming that laws are made up of individual clauses and that the court can declare particular clauses in the law unconstitutional.

This is not a legislative function.
They are not, in doing this, adding clauses to the law (which is the legislatures job).

As for the polygamy example.
There is no re-writing involved.
Simple interpretation.

"This law does not allow polygamy" is a judicial interpretation. The opinion creates additional text that is applied to the way the law is carried out. No revision of the law's text is needed.

Neu Mejican | July 15, 2008, 12:12pm | #

but I suspect they limit themselves to pronouncements that the law, as applied is inconstitutional, and leave the editing to others.

Of course.
And rules and regulations are written by the executive branch to clarify procedures for implementing the law that take into account the wording of the law and the judicial ruling. The text of the law is embedded in a procedural context.

MP | July 15, 2008, 12:13pm | #

Neu said:

I am not a legal scholar, so maybe I am incorrect, but no one here has given me a logical reason to assume that partial striking is equivalent to "re-writing."

I suggest that the issue involves substantively altering legislation such that it either expands it's original meaning or it significantly changes its original meaning. In either case, the court is injecting itself in the legislative process. Only by doing a reduction of scope can the court claim legitimacy, in that here it is only telling the legislature what it is not empowered to do.

Note also that this is not a Constitutional debate, but rather a Separation of Powers debate.

Neu Mejican | July 15, 2008, 12:18pm | #

Note also that this is not a Constitutional debate, but rather a Separation of Powers debate.

In other words this is a constitutional debate because it is a separation of powers debate?

I suggest that the issue involves substantively altering legislation such that it either expands it's original meaning or it significantly changes its original meaning. In either case, the court is injecting itself in the legislative process. Only by doing a reduction of scope can the court claim legitimacy, in that here it is only telling the legislature what it is not empowered to do.

In the example, the court is telling the legislature it is not allowed to limit marriage to man & woman. It is telling the legislature what it is not empowered to do. Any time you reduce the scope of a law you limit the government's power and you expand freedom.

liberty mike | July 15, 2008, 12:25pm | #

Elemenope-

The judge that dismissed the case denied the motion to expunge. There was malice in the arrest. The guy had to go to court 16 times before the judge dismised the charges on the basis that the prosecutor reneged on an agreement to dismiss that she had reached with the guy's lawyer. On the day that the charges were to be dismissed, she reneged because the guy had taken criminal complaint applications out on the cops involved with his arrest.

BTW, there are cases where SCOTUS or individual justices have found privacy protections in the First, Fourth, FIfth, Ninth and Fourteenth amendments. With regard to the 1st amd., do you buy the notion that the sweep of freedom of association includes the right to prevent the gvt. from knowing, say, the names, addresses and phone numbers of a civil rights organization?

Neu Mejican | July 15, 2008, 12:34pm | #

Paul | July 15, 2008, 1:49am | #
I would be interested in the constitutional argument here.

Details matter.

Property rights.

Again, I would be interested in how you would spin the changes you proposed as a constitutional issue involving property rights.

The law itself may be challenged on a property rights basis, but the particular changes you made were in no way that I could see motivated by an expansion or limitation of property rights compared to the original wording.

Not an apt analogy to the example I provided, as far as I can see. But maybe you can explain it in a way that it makes sense.

liberty mike | July 15, 2008, 12:34pm | #

Elemenope-

BTW-the prosecutor who reneged on the deal is now a f...in judge.

MP | July 15, 2008, 12:36pm | #

Neu said:

In the example, the court is telling the legislature it is not allowed to limit marriage to man & woman. It is telling the legislature what it is not empowered to do.

But then it turns around and forces the legislature to do more than it originally intended.

It's like saying "I'm sorry, but you can't just restrict food stamps to people under the poverty line. So we're going to strike the income limits from the law. Now, starting tomorrow, you must send food stamps to everyone."

And BTW, how is expanding the number of individuals eligible for a government sanctioned contract reducing the scope of government?

Elemenope | July 15, 2008, 12:44pm | #

lm --

In my experience, prosecutors make shitty prosecutors, never mind shitty judges. That aside, deals made between the prosecution and the defense regarding the extrajudicial dispensation of charges is not enforceable in court; I'm surprised the judge tossed it on that basis.

BTW, there are cases where SCOTUS or individual justices have found privacy protections in the First, Fourth, FIfth, Ninth and Fourteenth amendments. With regard to the 1st amd., do you buy the notion that the sweep of freedom of association includes the right to prevent the gvt. from knowing, say, the names, addresses and phone numbers of a civil rights organization?

Griswold was an overreach, IMHO. That's not to say I didn't like the result, only that the means by which they got there were utter bullshit.

On the narrower issue of preventing chilling effects on association, I think it is reasonable for associations to be protected by anonymity via the first amendment (though, via the fourth, i.e. "secure in your papers", which I imagine includes membership lists).

Neu Mejican | July 15, 2008, 12:46pm | #

But then it turns around and forces the legislature to do more than it originally intended.

How does it do that?

The legislature does not issue marriage licenses. That is what the executive branch does. The judicial ruling impacts the executive, not the legislature.

And BTW, how is expanding the number of individuals eligible for a government sanctioned contract reducing the scope of government?

It reduces the scope of their power grant favors to a particular class of people.

It's like saying "I'm sorry, but you can't just restrict food stamps to people under the poverty line. So we're going to strike the income limits from the law. Now, starting tomorrow, you must send food stamps to everyone."

Yes. It is just like that. If the legislature saw that consequence as a problem, they would need to go back to the drawing board and re-write the law to avoid the consequence. This kind of thing happens all the time.

MP | July 15, 2008, 1:13pm | #

MP: But it expands the number of people covered by the law.
Neu: But it contracts the number of restrictions in the law.
MP: Half empty!
Neu: Half full!

I don't think we're getting anywhere.

Neu Mejican | July 15, 2008, 1:34pm | #

MP,

Half full!!!!

I actually think there is a meaningful distinction between what you are saying and what I am saying.

You are claiming an expansion of services, I am claiming a restriction in powers.

They are related, perhaps, but not the same parameter.

Neu Mejican | July 15, 2008, 1:38pm | #

The important distinction between a powers and a services is that one, the service, is not related to the freedom of the person receiving the service, while the other, the power, is.

If I restrict a government power, I increase freedom.

Things are messier for increasing services.

Neu Mejican | July 15, 2008, 1:38pm | #

expunge extraneous "s's" at will.

Robert | July 15, 2008, 2:59pm | #

If the Man & Woman phrase is removed and the language allows for group marriages, then a group will attempt to get married, the state will refuse to give them a license (only two places for people to sign I am gonna bet), and that will end up in court. The court will then decide whether the revised law implies the right to group marriages. Given the history of that issue, they have some precedent to fall back on to say that polygamy is not covered...or they will allow polygamy.

This is a misconstrual of the way polygamy typically comes about. It's not a single group marriage, but a condition of an individual's being simultaneously part of more than one marriage. It's when someone who already has a spouse marries another.

And that's why polygamy practically isn't affected by definitions of marriage (the way same-sex marriage is), but by regulations on marriage. Anti-polygamy laws simply prevent someone who is already married from having another marriage.

Hardly anyone has brought up as a legal issue "group" (i.e. more than 2 persons) marriage as a thing in itself. That's why polygamy is actually a very different legal issue from same sex marriage.

Neu Mejican | July 15, 2008, 3:33pm | #

Robert,

Good point.
Looking back, the polygamy thing is a red-herring...

It is covered here:

An unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older, and not otherwise disqualified, are capable of consenting to and consummating marriage.

Paul | July 15, 2008, 5:21pm | #

The law itself may be challenged on a property rights basis, but the particular changes you made were in no way that I could see motivated by an expansion or limitation of property rights compared to the original wording.

Very apt, indeed. The citation I made was from the Critical Areas Ordinance which, as argued by "property rights extremists" amounts to a taking-- or specifically, an unreasonable tax and fee. By taking out the words I chose, it raises the bar significantly to recognize a piece of land as 'critical', thus resulting in greater protections for property.

Let's break this down. As much as I disagree or agree with any particular law, it seems highly unreasonable that a judge can remove an apostrope, word or comma from within a provision in a law, thus literally changing the meaning and intent of the law.

For instance, a state might have a law which specifically banned abortion (pretending to ignore the fact that there's a constitutional precedent for this-- I'm just making an example) and a court deemed it unconstitutional, but instead of overturning the law, they remove words specifically codifying a woman's right to abortion on demand.

Or the Supreme Court had removed specific words from the DC gun ban, making it not only legal to own a firearm, but have one handy at all times.

this. is. judicial. activism.

Changing the law is changing the law. Whether we're omitting or adding, a change is a change. You argue that as long as they expend no ink, but only expend some rubber eraser, they're not legislating from the bench. That's a bogus assertion. The fact that one can strike a word from it and thus make it "constitutional" isn't doing the republic any favors. Strike the law-- or at minimum an entire provision and send the legislators back to do their jobs correctly.

Paul | July 15, 2008, 5:23pm | #

If I restrict a government power, I increase freedom.

And if we could get everyone to believe that, we'd have a much more libertarian world.

Paul | July 15, 2008, 5:26pm | #

But then it turns around and forces the legislature to do more than it originally intended.

How does it do that?

The legislature does not issue marriage licenses. That is what the executive branch does. The judicial ruling impacts the executive, not the legislature.

Maybe not in the example you cite, but one could omit words from a law could and would do exactly that. See my example above. You don't find any problem with removing words from this law, because you're not comfortable with the words that existed in this law.

Neu Mejican | July 15, 2008, 6:59pm | #

Paul,

You don't find any problem with removing words from this law, because you're not comfortable with the words that existed in this law.

Wrong.
I am talking about the general case. RC Dean brought up the particular case I used for an example.

As long as the striking done by the judiciary is based on the constitutionality of the provision, I am comfortable with the "change" that results. In some cases the whole law is flawed and should be rejected. In some cases it is just a single provision in the law that is unconstitutional.

Very apt, indeed. The citation I made was from the Critical Areas Ordinance which, as argued by "property rights extremists" amounts to a taking-- or specifically, an unreasonable tax and fee. By taking out the words I chose, it raises the bar significantly to recognize a piece of land as 'critical', thus resulting in greater protections for property.

But the changes you proposed are not based on the principle you cite. Just changing the law to raise the bar doesn't get at the issue of whether that bar should exist or not. It is not a constitutional issue, but a procedural one.

To constitute a separate wetland vegetation class, the vegetation must be at least partially rooted within the wetland and must occupy the uppermost stratum of a contiguous area or comprise at least thirty percent areal coverage of the entire wetland.

Are you saying that by increasing the bar for what counts as a wetland vegetation class, the government would no longer be engaged in a taking?

If the government can constitutionally engage in the taking, then it is not a constitutional question, as you've presented it, where the bar is set for that taking.

Changing the law is changing the law. Whether we're omitting or adding, a change is a change. You argue that as long as they expend no ink, but only expend some rubber eraser, they're not legislating from the bench. That's a bogus assertion. The fact that one can strike a word from it and thus make it "constitutional" isn't doing the republic any favors. Strike the law-- or at minimum an entire provision and send the legislators back to do their jobs correctly.

Whenever a court adds to the text of a law through their judgment they have "changed the law" even if all they have done is provide a framework for interpretation of the laws provisions.

The process of law and order includes all three branches, and all three get to put their distinct stamp on the laws. Each branch changes the law as they act.

It is an iterative process.