pageok
pageok
pageok
"Judicial Negation is Not Legislation":
This slogan was suggested to me years ago by Leonard Liggio of the Atlas Economic Research Foundation and it captures nicely the analysis presented in a blog post by Jon Rowe on Judicial Nullification v. Judicial Supremacy...or, Sowell doesn't get it.
Much of what is termed "judicial activism" is simply the Court exercising its judicial review power to nullify a piece of legislation, usually a piece of legislation which impinges on liberty. Is that really "legislating"? In my eyes, judicial review is the very opposite of legislating. Legislatures, by their very nature, pass laws. Nullification is negating, or taking away, legislation. It's reverse legislating.

Regarding that Texas law to which Sowell refers, it was the sodomy law in Lawrence. A problem with the "if I were a member of the Texas legislature, I would have voted against the law," sentiment is that, by the very nature of the legislative process, it's quite easy to add a plethora of new (and mostly useless) laws every year to the record, but almost impossible to repeal old ones.

Finally, regarding the "nobody knows that they have violated the law until after the fact" assertion, Sowell's argument doesn't fit well to circumstances where courts exercise their judicial nullification power. Again, legislating, in my mind, is passing a command and control like rule which binds the people like "you can't drive over 55 mph." If, for instance, you were driving 60 in a 65mph zone and some court, after the fact, found you guilty of breaking the 55mph speed limit, then Sowell's argument would make sense.

Let's actually see what goes on with judicial nullification, using Lawrence as an example. . . .
Read the rest here. Civil comments only, please.

Related Posts (on one page):

  1. Responses to Comments on "Legislative Restraint":
  2. Legislative Restraint:
  3. "Judicial Negation is Not Legislation":
Cornellian (mail):
"Finally, regarding the "nobody knows that they have violated the law until after the fact" assertion, Sowell's argument doesn't fit well to circumstances where courts exercise their judicial nullification power. "

Heck, you don't even need to get into nullification. Every lawsuit with an issue of law plausibly in dispute works this way. You don't know if you're right about the law or wrong about the law until the case is over. Life in the common law system. Always has been. Deal with it.
5.19.2006 8:13pm
Cornellian (mail):
And let me apologize for my previous post ignoring EV's call for "civil comments only please." Mine was obviously a common law comment, and therefore not civil.
5.19.2006 8:14pm
Jim Miller (mail) (www):
Curious argument: The veto power of the president and most (all?) governors is generally considered a legislative power, one of the most important that the executive has. When they use the veto, they are, most would say, legislating.

Similarly, legislators often vote against a new law, or to repeal an old one. They are, most would say, legislating, even if they are acting negatively.

But when a judge, often an unelected judge, in effect, vetoes a law, the author would not consider it legislating because, I gather, it is negative rather than positive. Do I understand the argument right, or am I missing something?
5.19.2006 8:45pm
Gordo:
A good counter-argument to the Thomas judicial philosophy.

Of more concern to me than nullification is a Court reinterpreting an existing law to give it new meaning. An example of this would be the Jackson v. Birmingham case from last term where a Court majority added retaliation to the existing sexual discrimination statute where it wasn't clearly there before and had not been interepreted as being included for the first 20+ years of statutory history.
5.19.2006 8:45pm
anonymous coward:
Well, Jim, that's a good point, but the linked post explicitly disagrees with you.

From a libertarian perspective I suppose negation vs. legislation is an important distinction. For those who aren't libertarians, and believe legislation can occasionally enhance freedom and other desirable goals, nullification vs. legislation is less important (though probably not trivial).
5.19.2006 8:58pm
HLSbertarian (mail):
Jim Miller: A president can veto and a dissenting Congressman can vote Nay EITHER because he believes the law is a bad idea OR because he believes it lies beyond the legislative power. The former concerns the proper scope of the legislative function, and the latter is the legislative function itself. "Judicial negation," as I understand Prof. Barnett's usage, refers exclusively to the former - negating legislation taht goes beyond the proper scope of legislative power. It should not be conflated with what legislators and executives generally do simply because a principled few sometimes try to do the court's work a bit earlier.
5.19.2006 9:05pm
JimmySevenbakers:
Maybe as a layman I missed the point of the article, but I always that judicial activism wasn't the negation of legislature but the orders issued from the bench ordering school busing, school building programs, and here in New Jersey income tax to fund schools and income redistribution known as the Mount Laurel decision.
5.19.2006 9:06pm
JunkYardLawDog (mail):
This comment suggest that "Legislating" is passing some new command or prohibition, and therefore nullification or as Jim Miller correctly uses the term "vetoing" some command or prohibition can not be legislating.

This definition completely confuses and misses the entire essence of what *is* legislating and by this confusion reaches an incorrect result.

The end result of *legislating* is a command or prohibition. That result is *NOT* legislating itself however. Legislating in its purest form is deciding what government policy preferences and societal goals should be encouraged or discouraged.

Therefore, when an unelected judge overturns a policy preference expressed by the elected representatives of the people, they certainly may be legislating from the bench. A judge is not legislating from the bench in every case they overturn a law, but they are legislating from the bench in those cases where the judge is in essence substituting their personal policy preference for that of the legislature.

Knowing when a Judge is following the strict textual language and intent of a constitution that trumps legislation versus pretending to do this merely as a ruse (concious or unconcious) to substitute that judge's policy preferences for the policy preferences of the elected representatives of the people may not always be crystal clear. However, like pornography, I know it when I see it.

Says the "Dog"
5.19.2006 9:06pm
Jon Rowe (mail) (www):
Awesome. Thanks for the link.
5.19.2006 9:08pm
HLSbertarian (mail):
Jimmy: With the NJ Supremes as your baseline, the rest of the country will look like a paradise of judicial restraint. That is, until you reach the other coast.
5.19.2006 9:10pm
A. Zarkov (mail):
Judges not only think they can raise taxes; they think they can even raise their pay—without even a hearing. I remember (perhaps imperfectly) that an Illinois judge ordered the state Treasurer on penalty of contempt to raise judicial pay. The said it was unconstitutional for the legislature to allow inflation to reduce their purchasing power. The constitution did state that the legislature couldn't lower their pay. Does anyone know how this turned out?
5.19.2006 9:20pm
frankcross (mail):
Well, legislative actions can abolish laws (deregulation), so this seems a little semantic.

But the basic point is correct, surely, that judicial review is generally anti-government action. Moreover, there's some political science research showing that this is the only way that the judiciary can be effective. E.g., when it tries to enforce government action it fails, absent a broad societal consensus. The main role of the judiciary is as a veto point, to prevent affirmative intervention by the government.
5.19.2006 9:24pm
JimmySevenbakers:
The NJ Supremes just decided that illegal aliens qualify as "residents" and can collect from a state fund for those injured in automobile accidents by uninsured motorists, even when in a car also not insured and driven by an illegal. Now the illegals have a better deal than law abiders that carry auto insurance. An another example proving Amnesty for illegals shows it does not pay to abide by the law.
5.19.2006 9:33pm
ThirdCircuitLawyer (mail):
Enacting policy preferences into law is generally thought of as a legislative function. Courts that strike down laws they don't like are enacting their policy prefernces, and in that sense "judicial negation" is effectively legislation.
5.19.2006 9:36pm
JimmySevenbakers:
A link to another example of legislating from the bench. Do the NJ Supremes really think the legislature meant for illegals to be considered as "residents of NJ?


5.19.2006 9:43pm
JimmySevenbakers:
5.19.2006 9:44pm
Mahlon:
The use of the term "judicial activism" is one which bothers the hell out of me. It is one on an ever-increasingly long list of words that has ceased to have meaning. It has become a label, a catch-phrase designed to inflame the passions of everyone without communicating any meaning whatsoever. It has, through constant misuse, been relegated to the etymological dung-heap with the likes of "racism."

I will say that, in my humble opinion, judicial nullification, if properly exercised, is NOT judicial activism. Did you notice? Activism does not have the same meaning as nullification. Really! Look it up. There, that wasn't so hard was it. As the Dog suggests, however, it's the "properly exercised" part that muddies the waters.

Words have meanings. Once we stray from those meanings, we leave the path of logic and reason, and wander into chaos. That is what judicial activism really is.
5.19.2006 9:53pm
Andrew Hyman (mail) (www):
Randy (if I may take the liberty of calling you by your first name), the distinction that you attempt to make between "legislating" and "negation" cannot withstand scrutiny, in my opinion. Your distinction does not pass the tests of history, or of Supreme Court precedent, or of logic. Let me explain (civilly, of course).

The Supreme Court has repeatedly made it clear that, "Amendment and repeal of statutes, no less than enactment, must conform with Art. I." INS v. Chadha, 462 U.S. 919, 954 (1983). Amendment and repeal have always been considered LEGISLATIVE functions. The Declaration of Independence blasted the King of England for "abolishing our most valuable laws." Surely, the founders of our country did not intend to transfer such power from one set of unelected officials to another set of unelected officials.

Really, there's not even any need to consider history and precedent. Just consider simple logic. Suppose the judiciary decides to negate any law that infringes on the liberty of poor people to commandeer the property of rich people, or that infringes on the liberty of teenagers to exceed the speed limit, or infringes on the liberty of polluters to pollute. Your notion that negating laws is somehow inherently different from legislating would empower courts to basically run the country.

During the ratification debates, Oliver Ellsworth of Connecticut wrote that, "Liberty is a word which, according as it is used, comprehends the most good and the most evil of any in the world." The founders of our country thus did not view every liberty as "good," and every absence of liberty as "bad." Most fundamentally, they wanted to ensure that if liberty is taken away, then the people who do so are elected rather than unelected.

The liberty of one person can conflict with the liberty of another person. That is one of many reasons why judges should not have unlimited power to resolve all those conflicts. Calling it "negation" instead of "legislation" is a clever ploy to empower lifetime appointees to abolish our most valuable laws.
5.19.2006 10:11pm
Jon Rowe (mail) (www):
Calling it "negation" instead of "legislation" is a clever ploy to empower lifetime appointees to abolish our most valuable laws [my italics].

LOL. Sodomy laws as "our most valuable laws."
5.19.2006 10:25pm
Andrew Hyman (mail) (www):
Sodomy laws were not among the specific examples that I described.

As a general matter, legislatures have power to pass many sorts of bad laws. Unless you believe that the Constitution meant to forbid all bad laws. In that case, the framers certainly were verbose. The issue is who is empowered in our society to determine which laws are good and which laws are bad. The genius of the framers was to say that the people and their elected representatives generally have that power, with specific judicially enforceable limitations expressed in the Constitution.

Are you still "LOL," Jon?
5.19.2006 10:31pm
Jon Rowe (mail) (www):

During the ratification debates, Oliver Ellsworth of Connecticut wrote that, "Liberty is a word which, according as it is used, comprehends the most good and the most evil of any in the world." The founders of our country thus did not view every liberty as "good," and every absence of liberty as "bad."


Why don't you quote, instead of Ellsworth, what the Declaration itself has to say on liberty: It says that liberty, in its broad and general sense, is an "unalienable" right, which means it is a right that individuals have prior to majority rule. Now that doesn't mean that there can be no absence of liberty; we need to cede some liberty to government in the first place so they can protect us against our neighbor who might otherwise do us harm. But it does mean that there is a strong presumption in favor of liberty, and against the absence of it.
5.19.2006 10:32pm
anonymous coward:
Really crazy courts could abolish not only anti-sodomy laws but also more important stuff like, say, child labor laws. It sounds crazy, I know.

(Personally, I favor mandatory sodomy laws, and I expect Congress will join me by 2025.)
5.19.2006 10:36pm
Andrew Hyman (mail) (www):
I have no quarrel with a presumption of liberty. It's a well-known and acncient principle that when a criminal law is vague in some way, it should be construed in favor of a defendant. However, I don't think that there is room for any such presumption when the laws are clear. For example, a law that says "No person shall fire a bullet into another person except in self-defense" is fairly unambiguous, and there is no need to presum that the person firing the gun has a liberty to do so.

But perhaps we're getting a bit far from the topic od the post, which was the legitimacy of a distinction between negation and legislation. Shall we strip from legislatures the ability to repeal their acts?
5.19.2006 10:44pm
Jon Rowe (mail) (www):

Shall we strip from legislatures the ability to repeal their acts?


Why would we do that? They should be able to repeal their mistakes, which they rarely do anyway.

On a different note, a Constitutional Amendment I'm thinking about is one which would require all laws passed by any legislative body -- federal, state and local -- to sunset within 20 years. If the laws are important enough; legislatures will renew them. Perhaps a few basic common law rights against things like murder, theft and the like, could be exempted in the Amendment.
5.19.2006 10:49pm
Andrew Hyman (mail) (www):
Jon, I'm glad you're suggesting a constitutional amendment to implement your proposal, instead of suggesting a judicial decision to do so.
5.19.2006 10:50pm
Justin Levine:
Maybe this point is so obvious that nobody has yet bothered to state it yet: Under this theory, nobody could even remotely claim that Roe v. Wade was an act of "judicial activism" or "judicial supremacy". After all, it was simply "negating" a legislative law, right?

Of course you could argue that the judicial establishment of a "trimester" analysis regarding the level of abortion restrictions was a postive legislative act that amounts to "activism" within the Roe decision. But then you are left with the curious analysis of suggesting that Roe v. Wade might have been "activist", but a ruling that would prevent any regulation of abortion whatsoever (even up to the 9th month of pregnancy) would be a simple act of "negation" that is consistent with the mandate of the judicial function.

The distinction sounds like complete bunk to me.
5.19.2006 10:55pm
Jeremiah:
Extra-constitutional power is extra-constitutional power, whatever name it goes by. I submit that no fair minded person can believe anything other than that the Court in Roper, without any meaningful evidence of national consensus to back an "evolving standards" claim, nevertheless imposed its moral judgment on the entire country. Call this a "judicial veto" or call it "legislating from the bench," it was neither more nor less than a judicial usurpation of the power to amend.

"Judicial nullifications" are entirely proper and a necessary bulwark of liberty - when backed by real constitutional warrant. But "judicial nullifications" which amend the Constitution outside the Article 5 process are nothing less than despotic acts.
5.19.2006 11:09pm
Jon Rowe (mail) (www):

Under this theory, nobody could even remotely claim that Roe v. Wade was an act of "judicial activism" or "judicial supremacy". After all, it was simply "negating" a legislative law, right?


It depends. If the fetus really is a human being with rights, then such laws protecting them are legitimate government functions, and hence shouldn't be struck down. If not, then we do have a broad and general liberty right, found in the 9th and 14th Amendments as well as in the Declaration of Independence, under which arguably the right to abortion could fall. Certainly, Griswold was properly decided under this theory, even if the Constitutional rubric of "privacy" is suspect.

"The distinction sounds like complete bunk to me."

And most criticism of judicial activism sounds like complete bunk to me.
5.19.2006 11:10pm
Jon Rowe (mail) (www):

I submit that no fair minded person can believe anything other than that the Court in Roper, without any meaningful evidence of national consensus to back an "evolving standards" claim,


Oh well let's see. The 8th Amendment which was at issue in that case forbids "cruel and unusual" punishment. The word unusual has statistical connotations, meaning that as an activity becomes less common, it becomes more unusual. So an activity that is not "cruel and unusual" in 1791 could, in 2006, indeed fit the original meaning of the clause.
5.19.2006 11:15pm
HLSbertarian (mail):
Justin Levine: You bring up a good point. Even the most extreme activist decisions can be easily constructed in terms of negation. A decision like Roe or Miranda, in addition to negating the state action in question, also defines a large set of similar actions which would also be negated if enacted. The real distinction is the line between ruling on the scope of legislative action and the content of that action, a much tougher line to draw.

The experience has been that wide, prophylactic rulings more often earn the "activist" label and more often deserve it. However, this doesn't mean that they can't be framed in terms of "negation."
5.19.2006 11:17pm
Andrew Hyman (mail) (www):
"The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not." --- Holmes, dissenting in Lochner

Jon, why would negating the type of victimless law that Holmes spoke about not be "legislation," whereas negating other types of laws would be "legislation"? Is there any evidence that the framers had such a definition of "legislation" in mind when they wrote: "All legsialtive powers herein granted shall be vested in a Congress of the United States...."? Was there any dictionary extant in 1787 that drew such a distinction?
5.19.2006 11:20pm
HLSbertarian (mail):
Justin Levine said: "I submit that no fair minded person can believe anything other than that the Court in Roper, without any meaningful evidence of national consensus to back an "evolving standards" claim..."

Jon Rowe said: "Oh well let's see. The 8th Amendment which was at issue in that case forbids "cruel and unusual" punishment. The word unusual has statistical connotations, meaning that as an activity becomes less common, it becomes more unusual."

Come on now. Justin didn't say that statistical evidence is irrelevant, he said the court fudged its finding of a national consensus. When Roper was decided, 20 out of 50 states allowed the juvenile death penalty. Unusual? Maybe, given how often those states that allowed it actually carried it out, but maybe not. You have to remember that setting the standard for "unusual" too low will mean that "evolving standards" will only move in one direction, regardless of shifting national consensus.
5.19.2006 11:30pm
Jeremiah:


So an activity that is not "cruel and unusual" in 1791 could, in 2006, indeed fit the original meaning of the clause.


The problem here is that the Court decided it not "cruel and unusual" in 1989. Executions of 16- and 17-year-olds have not materially declined since then (rate of about 1 per decade). The Court therefore had to rely on claims of an emerging national consensus to reverse itself after so short a time. Its reasoning establishing that consensus, however, was very weak indeed.
5.19.2006 11:31pm
Jon Rowe (mail) (www):
1: I think Holmes was wrong in Lochner.

2: Read Article I in detail. It sets out only very limited powers for Congress. If everything that's enumerated on the list is what defines "legislation," that's fine with me. Now, Congress does have the power to implement a Post Office. But where does Congress have the power to legislate the type of law that was at issue in Lochner?
5.19.2006 11:31pm
JunkYardLawDog (mail):
John Rowe:


Oh well let's see. The 8th Amendment which was at issue in that case forbids "cruel and unusual" punishment. The word unusual has statistical connotations, meaning that as an activity becomes less common, it becomes more unusual.


Becoming less common doesn't turn what was NOT cruel into something that IS cruel. Its got to be BOTH cruel AND unusual. If you try to argue that uncommon becomes cruel automatically, then you are arguing for a non-constitutional amendment to the language of the constitution because if the framers meant ONLY unusual they would have said ONLY unusual. Since the framers wrote BOTH cruel AND unusual they obviously meant something other than just unusual.

Says the "Dog"
5.19.2006 11:32pm
HLSbertarian (mail):
Andrew Hyman said: "Lochner...victimless law..."

Careful, people who like freedom and understand economics sometimes read these posts.
5.19.2006 11:33pm
Jon Rowe (mail) (www):
I don't agree with the outcome in Roper. My point simply was that the specific meaning of a particular Constitutional clause might evolve, even as the general original meaning of the words does not.

The fact that the word "unusual" exists in a clause, it seems to me, builds in an "evolving" constitutional standard, given that the usualness of practices changes over time.
5.19.2006 11:35pm
Jon Rowe (mail) (www):
Dog:

What if something was cruel and usual, as were tarring and feathering and riding someone out on a rail, and then becomes less in vogue?
5.19.2006 11:36pm
Andrew Hyman (mail) (www):
Jon, you asked, "But where does Congress have the power to legislate the type of law that was at issue in Lochner?" That would be in Article I, Section 8, Clause 17.
5.19.2006 11:37pm
HLSbertarian (mail):
1) What do the enumerated powers of the US Congress have to do with the New York legislature?

2) Andrew, if you're going to cite Clause 17, I'm afraid you'll need to give us a "foregoing power."
5.19.2006 11:42pm
Andrew Hyman (mail) (www):
HLSbertarian, you're confusing Clause 17 with Clause 18.
5.19.2006 11:43pm
Jon Rowe (mail) (www):
"What do the enumerated powers of the US Congress have to do with the New York legislature?"

We were trying to come up with a definition of the word "legislation."
5.19.2006 11:47pm
HLSbertarian (mail):
My mistake, Andrew.
5.19.2006 11:47pm
HLSbertarian (mail):
I asked: "What do the enumerated powers of the US Congress have to do with the New York legislature?"

Jon Rowe said: "We were trying to come up with a definition of the word "legislation."

Legislating is making choices withing the scope of powers granted by the applicable constitution(s). What that scope should be is a separate discussion. When the negated legislation is a state law, talking about Congress' enumerated powers doesn't make much sense.
5.19.2006 11:54pm
frankcross (mail):
Well, these debates all seem to come down to the same thing. The courts should negate truly unconstitutional laws but not "legislate" beyond what the constitution commands. Followed by hubristic excoriation of courts for doing the latter in Roe, or whatever.

But of course the courts say they are only executing what the constitution commands. You are not God, nor are you the official definer of the constitution. You can have an opinion that the courts are wrong, but the constitution gives the power to the courts rather than you. It's constitutional because the courts are exercising their constitutional power to decide what's constitutional.
5.20.2006 12:08am
Andrew Hyman (mail) (www):
"It's constitutional because the courts are exercising their constitutional power to decide what's constitutional." Are they?

And would they be doing so if they adopted Professor Barnett's suggestion that courts can "negate" any law they please that infringes on a court-concocted set of liberties?
5.20.2006 12:13am
Jeremiah:
Correction:
The rate of execution of minors over the last 20 years is about 1 per year.
5.20.2006 12:24am
Andrew Hyman (mail) (www):
Jon, at 10:10PM, you said:

If the fetus really is a human being with rights, then such laws protecting them are legitimate government functions, and hence shouldn't be struck down. If not, then we do have a broad and general liberty right, found in the 9th and 14th Amendments as well as in the Declaration of Independence, under which arguably the right to abortion could fall.


I wish it were true that the Supreme Court would generally allow legisaltures to balance people's competing liberties. Unfortunately, courts have usurped that power. They decide whether a grandparent's right to visitation outweighs a parent's right to control. And, they decide whether a woman's right to visit an abortionist outweighs her mate's right to protect the fetus. See Adam Liptak, Ex-Boyfriend Loses Bid to Halt an Abortion, N.Y. TIMES, Aug. 6, 2002 at A10.

My point is that the courts have not limited themselves to generally striking down statutes that punish consenting adults. They also meddle wher there are non-consenting adults. Indeed, there is nothing in the Constitution that distinguishes between these two types of statutes.
5.20.2006 12:43am
Mahlon:
Frankcross writes:

"But of course the courts say they are only executing what the constitution commands. You are not God, nor are you the official definer of the constitution. You can have an opinion that the courts are wrong, but the constitution gives the power to the courts rather than you. It's constitutional because the courts are exercising their constitutional power to decide what's constitutional."

Where in the Constitution does it say that the Court's are the arbiter of what is constitutional? "Judicial power" is not defined. The concept of judicial review of legislative acts was itself judicially created in Marbury v. Madison. Your assertion that the Constitution commands such exercise of power is simply incorrect.

Don't get me wrong. I really don't see an option, but don't mischaracterize the nature of the power.
5.20.2006 1:25am
Andrew Hyman (mail) (www):
Oh posh. Of course there are options. Anytime it wants, Congress has power to pass a statute demanding that the Supreme Court can only strike down a statute if (A) seven justices concur, or (B) it clearly violates the original intended meaning of the Constitution.

Instead, all we hear is nonsense about putting cameras in the courtroom so that we can more closely behold this eminent tribunal. Or nonsense about statutorily banning citation to foreign law in Supreme Court opinions (as if the Justices wouldn't manufacture different rationales to attain the same results).
5.20.2006 1:34am
Randy Barnett (mail) (www):
Mahlon:

The myth that judicial nullification for unconstitutionality originated with Marbury v. Madison is amazingly resilient. You should take a look at The Original Meaning of the Judicial Power.
5.20.2006 1:50am
Mahlon:
Fine, Congress can pass such a law. But does it have that power. It can create a court inferior to the Supreme Court, but I see nothing in Article I which gives it the power to proscribe how the Courts conduct their affairs. Nonetheless, the Supreme Court itself will determine, rightly or not, whether it is bound by such a law.

Don't get me started on the cameras in the Court.
5.20.2006 1:52am
Andrew Hyman (mail) (www):
Mahlon, of course Congress has power to pass such a law. Who do you think decided how many justices sit on the court? And how many justices are necessary to form a quorum? The Necessary and Proper Clause empowers Congress to carry into execution not only its own powers, but also those of "any Department or Officer" of the United States. Harvard Law Professor Jed Shugerman wrote an article not too long ago in the Goergia Law Review confirming that Congress decide about whether a supermajority of the Supreme Court is necessary to strike down a statute. It's tragic that such a thing has become necessary, but I don't see how the Supreme Court could credibly deny the power of Congress in this regard.
5.20.2006 2:11am
Andrew Hyman (mail) (www):
That's "can decide" instead of "decide."
5.20.2006 2:14am
Dan Simon (mail) (www):
The myth that judicial nullification for unconstitutionality originated with Marbury v. Madison is amazingly resilient. You should take a look at The Original Meaning of the Judicial Power.

Translation: "anyone who dares to disagree with Randy Barnett about controversial topics such as the history of the judicial review power in American jurisprudence (or, by inference, about anything else) is in the grip of pure delusion, the only cure for which is reading, and taking to heart, more of the writings of Randy Barnett."

I was going to bring up Bush v. Gore as an example of the intractable fuzziness of the distinction between nullification and legislation. But then I realized that either Randy Barnett knows that Bush v. Gore is not an example of nullification, or he knows that it is not an example of legislation. And the very fact that I myself don't even know which claim is the incontrovertible truth, as revealed by Randy Barnett--let alone that I foolishly dare to imagine that Bush v. Gore might arguably be an example of both, that is, of nullification as legislation--obviously marks me as a man who desperately needs to be reintroduced to reality, as it is helpfully explained in the writings of Randy Barnett.
5.20.2006 3:51am
HLSbertarian (mail):
Thanks for the enlightening counterpoint, Dan. And here we were sitting wondering why Prof. Barnett added a "Civil comments only, please" to his post.
5.20.2006 4:08am
Andrew Hyman (mail) (www):
Professor Barnett happens to be clearly correct about the validity of judicial review. People are going to get noweher banging their heads against the wall regarding this subject. Federalist 78 is probably the best proof that Barnett is correct on htis particular point. Hamilton wrote:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.


Of course, the Supreme Court has long since abandoned Hamilton's test of "irreconcilable variance" in favor of a test resembling "plausible variance." In other words, it's not judicial review that's truly controversial, but rather the manner in which it's exercised.
5.20.2006 4:29am
Splunge (mail):
Hmm, after reading this post, I was inspired to discover a closely related principle: Common misperception notwithstanding, quibbling over definitions is not really the same as making cogent arguments.
5.20.2006 6:16am
Cornellian (mail):
Where in the Constitution does it say that the Court's are the arbiter of what is constitutional? "Judicial power" is not defined. The concept of judicial review of legislative acts was itself judicially created in Marbury v. Madison. Your assertion that the Constitution commands such exercise of power is simply incorrect.

So two parties come before the court in a lawsuit, party A claims he wins because of Law #1. Party B says yes, Law #1 says that A wins, but Law #2 is inconsistent with Law #1 and Law #2 says it trumps all other laws (Law #1 has no such provision) and therefore, says B, I should win.

The Court reviews the laws, concludes they are, in fact, inconsistent and that Law #2 on its terms trumps all other laws. The Court therefore rules in favor of B. What exactly is this, other than an exercise of judicial power? It certainly doesn't look the least bit legislative, and certainly not executive.
5.20.2006 9:32am
Mahlon:
So Randy Barnett looked at legislative history and comments of the time to determine what was naturally included in the grant of "judicial power." Completely valid methodology. I do not dispute the validity of judicial review. As I previously stated, I see no practical option. After reading all of Prof. Barnett's paper, I'm sure I'll agree wholeheartedly with his analysis. That is not to say that the concept of judicial review was not first officially recognized in Marbury. It is the first place in American law where the power was defined.

My point is that "judicial powers" are not expressly granted in the Constitution, but rather must be implied. We note that Article I does not simply grant Congress "Legislative powers," but rather enumerates those powers. To be sure, I'm not sure the enumeration helped a hell of a lot, but it gave us a better starting point for debate. You know, slightly more precise words, like "commerce."

Splunge writes: "Common misperception notwithstanding, quibbling over definitions is not really the same as making cogent arguments."

This statement is quite troubling. We must master the meaning of words before we can use them in debate, lest we be stuck with grunts and whistles. You and I can agree that "peace" is a good state of existence. If, however, we have different concept of what "peace" entails, our agreement is empty. Of course, "quibbling" over definitions is not the same as making cogent argument; it just happens to be an absolute prerequisite.

Mr. Hyman writes: "Of course, the Supreme Court has long since abandoned Hamilton's test of "irreconcilable variance" in favor of a test resembling "plausible variance." In other words, it's not judicial review that's truly controversial, but rather the manner in which it's exercised."

Amen!
5.20.2006 11:23am
johnt (mail):
In reading jon Rowe's post I noticed he skipped blithely over Bowers V Hardwick as well as the 10th amendment. So in the interest of liberty one may ignore those parts of the Bill of Rights as well as court precedence. It does make for an easier argument. I don't maintain that precedence in and of itself is binding, but combined with the 10th, or the remnants of the 10th, he could have at least paid lip service to it.
Did he use the word "activism"? Does "creating" fit in?
5.20.2006 11:36am
JunkYardLawDog (mail):
Jon Rowe


Dog:

What if something was cruel and usual, as were tarring and feathering and riding someone out on a rail, and then becomes less in vogue?



If something is cruel but not unusual and later becomes unusual, then your argument that unusual implies some kind of frequency of occurence determination that could result in a standard that would change over time is at least not wrong on its face. It is wrong on its face when applied in a manner that it effectively turns "cruel and unusual" into just "unusual". The constitution prohibits what is BOTH cruel and unusual. Some form of punishment can go from being usual to being unusual, but that is NOT any evidence that something that wasn't cruel before is somehow cruel now. Given that the death penalty is applied to people 18 and over, I don't see how it can be argued that the death penalty is "cruel". What the Supreme Court did was decide (falsely imho) that the death penalty of persons under 18 was unusual and that unusual was enough to invalidate the statute. In effect they ruled that something which is unusual is by definition also cruel which effectively removes the word cruel from the text of the constitution. The problem with this is that the plain language of the constitution says BOTH cruel AND unusual. If the framers thought something unusual was by definition cruel, they would have written just the word unusual and not included the word cruel at all.

However, removing words from the literal text of the constitution is something this particular court was getting good at. Hence their pro big government anti-liberty decision in Kelo where they struck the word PUBLIC in "public use" out of the constitution.

Says the "Dog"
5.20.2006 1:57pm
M. Simon (mail) (www):
splunge,

And if the argument turns on the definition, then where are you?

Check with Godel.

Bottom line. There is no unbreakable logical system once the system is sufficiently complex. The law I think qualifies. We are not going to get liberty on a feather bead of law even with judges steeped in the primacy of liberty.

As always. The price of liberty is eternal vigilance.

Did I mention drug prohibition?

Bottom line: we are getting the government we deserve.

I like Randy's effort to get us to deserve more liberty. A move in the right direction.
5.20.2006 9:34pm
M. Simon (mail) (www):
However, suppose a punishment was cruel but not unusual.

Then a decline in frequency ought to definitely change the permisible.

And since all punishment is in some sense cruel or it would not be punishment, then frequency matters.

Now whether justice out to be primarily restorative or primarily punitive is a whole nother question.
5.20.2006 9:51pm
M. Simon (mail) (www):
Frequency of a given type of case should be matched with frequency of a given type of punishment in deciding what is unusual.
5.20.2006 9:57pm
Ghlade:

Some form of punishment can go from being usual to being unusual, but that is NOT any evidence that something that wasn't cruel before is somehow cruel now.


Given that the death penalty is applied to people 18 and over, I don't see how it can be argued that the death penalty is "cruel".


Let's assume for the moment that your first quote is correct: cruel and unusual are separate and distinct terms. You cannot get to "cruel" by way of unusual. How then can you say immediately afterwards that the death penalty isn't cruel because it's practiced on adults? What is that, if not conflating the two concepts of cruelty and frequency of use?
5.21.2006 12:00am
PeterH:
This is fascinating. I am not a lawyer, and don't have more than a passing understanding of a lot of fine points, but it seemed to me that the original point wasn't about "negation" or "legislation" as such.

It was about the fairly plain and basic truth that courts do one sort of thing that is some form of looking at a law and saying to the legislature that there are overriding rules that make that law invalid, and on the other hand, deciding what the law "should" have said and mandating that instead. It is the difference between saying, "Nice try, go back and do your homework and try again" and saying "You got it wrong, but we will fix it by deciding what you should have said."

"Negation" and "Legislation" are two words that the orignal writer used to summarize. But, as has been pointed out, sometimes negating a law has nothing to do with the overriding (such as Constitutional) rules, but rather "policy" or "social engineering" and sometimes, redefining a laws meaning really does have more to do with saying that only some interpretations of a law square with the overriding rules while others don't.

But most of the posters seem to have decided to argue the WORDS "negation" and "legislation" and ignore the point behind them. What's with that?

I've seen next to nothing in this thread actually discussing the point of the article. Is that because it makes too much sense to argue? Or because people find it so much easier to construct straw men than do the work of thinking through the actual premise?
5.21.2006 2:09pm
JunkYardLawDog (mail):
GHLADE:


How then can you say immediately afterwards that the death penalty isn't cruel because it's practiced on adults? What is that, if not conflating the two concepts of cruelty and frequency of use?




What I'm saying there is that since we would all agree I assume that the death penalty for those over 18 is NOT unusual and that since the courts have not outlawed the death penalty then it can't be a cruel form of punishment constitutionally speaking.

Therefore, what the court had to have done in its decision about the death penalty for juvenilles is to decide (and this is what the in fact argued) that the death penalty for juvenilles was unusual and growing more unusual. They clearly ruled that the death penalty for juvenilles became unconstitutional just because they mistakenly thought it was becoming more unusual, and thereby striking the word cruel from the constitution.

Says the "Dog"
5.22.2006 12:04pm
JunkYardLawDog (mail):
Let's be real here. What the constitution clearly meant when it was written was that punishments like being drawn and quartered or burned at the stake were to be outlawed as cruel and unusual. Oh let's not forget being strapped over the barrel of a cannon just before the cannon is fired.

The framers and the people who adopted this language would be rolling their graves with laughter at the thought that executing pre-meditated juvenille serial killers was cruel and unusual or the thought that lethal injection drugs might cause some allergic reaction in the sentenced was cruel and unusual.

Says the "Dog"
5.22.2006 12:08pm