Tuesday, May 10, 2005

Republicans write the Constitution out of existence

Also posted over at Hullaballo in a comment on this thread (with some additional text added her for context):

The conservative Republicans are on a mission to try and curb the powers of the judiciary. The most current ruse (other than trying to take away all but a judge's salary) is to twiddle with "jurisdiction", and deny to the courts jurisdiction to hear certain types of cases under Article 2, Section 2, Clause 2 of the Constitution. Let's look at the basics (and I'm going to give the conservatives the benefit of the doubt here on their motivations and reasoning).

There are a fair number of federal laws that specify by who, and how, a federal action can be challenged in court (and to be fair, the courts themselves place restrictions on who can ask for court relief, under such rubrics as "standing", "jurisdiction", and "ripeness", etc.... to be sure, I don't agree that such limitations are fair in all cases, even if "pragmatic").

But for the most part, the legislative restrictions apply to suits arising under the laws themselves; e.g., if you are suing under some anti-discrimination provisions, you may well be required to first file a complaint with the EEOC, and let the EEOC proceed with action on the complaint rather than charge into court yourself.

Also, certain legislation can exempt specific people from civil liability, even if the liability springs from causes of action that the legislation doesn't otherwise specifically cover.

And the government generally has sole discretion as to whether to pursue criminal charges; you can complain as loud as you want but if a government refuses to bring criminal charges against an individual, you can't go to court to force them to do so.

To some extent, your ability to file a lawsuit is prescribed even in the rules that the government lays down for the operation of courts; if they say that the laws say you can't sue, that's the laws they passed; you can't sue and they are de jure acting "legally".

Implicit in all of the above is the notion, perhaps a pragmatic one, that not every "problem" has a solution in court.

There is a growing RW fondness, however, for the idea of government "sovereignty". It is seen in the recent trend in 11th Amendment law, where the RWers have insisted that the government is free from suits against itself unless it wants to allow them. While I thought that we had had a revolution a couple centuries ago just to repudiate the notion of "kings" and the "STFU, I am the law" retort, the RW seems to think that a democratic government is sufficiently responsive to the people that it should be free from questioning in a courtroom -- rather than on the soapbox -- if it so chooses. Of course, the individuals that are inconvenienced by this, and who think that the government in their specific case is acting outside the law are specifically SOL then. Unless they can convince a large number of people of the government malfeasance, their grievances will be unredressed. While I disagree with this thinking about the usefulness and the "benefits" of this idea of sovereignty, it is an arguable case, and perhaps it's not an inherently unworkable system, even if it does tend to promote at least to some extent big and unaccountable government.

Things get a little trickier when the legal issues in certain court cases involve the Constitution itself. From an abstract standpoint, any system where the bedrock law of the system -- the very "rules of engagement", as it were -- is not supreme but is inherently unstable and violable ... and perhaps that is why the architects of the Constitution put in the quaint phrase of the Constitution being the "supreme law of the land". In this case, barring jurisdiction for such cases based on causes of action arising under the Constitution would in effect mean that the legislature can -- if it so chooses -- make the Constitution a nullity and effectively "amend" the Constitution through simple majority vote. Maybe the Founders thought that no reasonable Congress would do such a thing, or that the other checks and balances of elections, Constitutional conventions, revolution, etc., would prove a stop to Congressional over-reaching (and to some extent in fact, it is true that even the finely constructed and balanced form of government the United States has crafted is to some extent dependent on at least a small modicum of good faith acting by those in power). But knocking out the prop of Marbury v. Madison from the power of the judiciary, and the dilution of the power of "checks and balances", would seem to put that idea to the extreme test, particularly in a time when the party in power is in the hands of rabidly partisan extremists.

OTOH, it is also true that a judiciary run amok could hamstring and frustrate the legitimate efforts of the other co-ordinate branches should the judiciary be taken over by a bloc of extremists. However, this is unlikely for several reasons. First, courts are the "least dangerous branch", having no money nor army of their own ... a sentiment expressed by many constitutional and judicial scholars over the years. Secondly, the courts act in individual and specific cases, and there are many courts and far more court cases than courts. Unlike the general ability of the legislature to set one law for all on the basis of a transient, slim, and contested majority, the courts must decide case by case, and the courts would have to be hijacked as a whole -- and thoroughly and completely so -- by extremists, to have the same effect as an overbearing legislature. This, of course, is exactly what the RW is screaming and moaning (and have been for a half century) has happened to the judiciary. But it simply isn't so. Invoking the "nuclear option" of jurisdictional limitation to cure the perceived "excesses" of the courts on a couple of hot-button issues is likely to do far more damage than it cures in the long run (something that the conservatives don't seem to look at), while the cure for such alleged "judicial overstepping" is already specified in the Constitution: If you don't like a court ruling, amend the parts of the Constitution you don't like rather than writing it out of existence altogether. . . .


At 3:54 AM, Blogger Leah A said...

I followed you here from Digby. Nice post. Terribly worrying, this attack on the courts. What I always wonder is how, without Judicial Review, the Bill of Rights is supposed to be defended against the encroachment of government? Of course it's precisely those "rights" retained by citizens that make the current right most uncomfortable.

I see from your profile that you're not a lawyer. If I may ask, do you have some other background in law?

Anyway,nice to meet ya; I'll be back to do some more reading in the future.

At 5:07 AM, Blogger Arne Langsetmo said...

Nah, "IANAL". You caught me. But I do know how to read, and have had an interest in law, particularly constitutional law, for many, many years. At one point I decided to take a(nother) detour in my life's journey, and go off to law school. I learned a few things there: 1). You can learn law without going to law school, 2). Most if now all of what lawyers do is bone-chillingly boring, and 3). My perpertual habits of horrible procrastination doing things I don't like to do would be fatal to any kind of law career and would undoubtedly end up with me being disciplined for malpractise.

Then there's the cold, hard fact that when you want to practise constitutional law, you'd better keep your day job, as the cases are few and far between, not to mention that the side of such type cases I'd like to take happens to be the side that doesn't have the money....

Glad you stopped by.

As you can see, I do have a day job, and I don't have time nor the incentive to keep things up-to-date on a daily basis here. But do stop by every once in a while to see if I had a couple of cents to toss onto the blogwaves; hopefully from a somewhat different perseptive or angle. And if not, at least I may have some pretty fishes for ya.


At 5:17 AM, Blogger Arne Langsetmo said...

Oh, yeah, in answer to your question, teh answer from the Republicans is "seldom if at all".

They do this through procedural restrictions, monetary restrictions (i.e., banning class action suits so that the costs of engaging in a legal action is multiplied manifold and discourages legal action; also the banning of federal money to legal aid societies who engage in class action lawsuits), and now attempts to curtail jurisdiction.

The end result is that the Bill of Rights gets whittled down to a tooth-pick in many instances. That's the program; while the Republicans are "the gummint", they would prefer as few restrictions on gummint action as possible.

Sad to say, so-called "conservatives" seldom look at the big picture and think about what the animating pronciples of the Bill of Rights are; they just look for loop-holes around it to achieve their personal objectives. Nor do they (nor did they) ever have much faith in the Bill of Rights in the first place. It really is a quite liberal document.


At 3:17 PM, Anonymous Joseph W. said...

But the jurisdictional limitation option is itself specified in the Constitution -- Article III, section 2 ("In all other the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction...with such Exceptions and under such Regulations as the Congress shall make"). Using this constitutional option is not "writing the Constitution out of existence" at all, and is a good deal easier than the amendment process.

At 9:37 AM, Anonymous Anonymous said...

P.S. - to clarify: Article III, section 2, isn't a sneaky way to evade checks and balances - it is, itself, one of those checks and balances.

Professor William G. Ross has written some excellent articles on "court-curbing" plans over the last century or two (my Westlaw account doesn't cover general law reviews or I'd give you a cite).
Use of Article III is but one of many - the most extravagant was a proposed Constitutional amendment to create a "court of the states," with judges from every state in the Union, that would have the power to overturn Supreme Court jurisdiction.

As Professor Ross rightly notes, not one of these court-curbing plans ever went anywhere, no matter how frustrated large sections of the country were with what the Court was doing.

At 10:48 PM, Blogger Arne Langsetmo said...

Just FWIW, I read Article III, Section 2 to simply allow of the prudential distribution of original jurisdiction between the Supreme Court and the inferior courts. I think that interpeting the second paragraph of section 2 to allow the prohibition of certain suits (as suggested by the RW coterie), when the first paragraph states:

"Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."

is simply to misread the entire section. If all such cases are amenable to the jurisdiction of the courts, then how can someone rationally write some out completely due to this strained interpretation of the second paragraph? If one were to adopt the "interpretation" of the RW folks, the entire section as a whole just wouldn't make sense. The only rational interpretation is that the second paragraph allows for the legislature to appportion the caseload in a practical fashion as circumstances may dictate.



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