"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.Read the rest here. Civil comments only, please.
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. . . .
Related Posts (on one page):
- Responses to Comments on "Legislative Restraint":
- Legislative Restraint:
- "Judicial Negation is Not Legislation":
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.
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?
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.
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).
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"
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.
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.
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.
LOL. Sodomy laws as "our most valuable laws."
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?
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.
(Personally, I favor mandatory sodomy laws, and I expect Congress will join me by 2025.)
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?
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.
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.
"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.
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.
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.
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."
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?
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.
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.
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?
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"
Careful, people who like freedom and understand economics sometimes read these posts.
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.
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?
2) Andrew, if you're going to cite Clause 17, I'm afraid you'll need to give us a "foregoing power."
We were trying to come up with a definition of the word "legislation."
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.
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.
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?
The rate of execution of minors over the last 20 years is about 1 per year.
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.
"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.
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).
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.
Don't get me started on the cameras in the Court.
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.
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.
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.
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!
Did he use the word "activism"? Does "creating" fit in?
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"
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.
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.
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?
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?
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"
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"