“Activist” Judges
Digg 
Stumble Upon 
Newsvine 
Slashdot 
Mixx 
Diigo 
Delicious 
Reddit 
Facebook
E.D. Kain objects to Ed Whelan’s complaints about the “lawless judicial attack on traditional marriage and on representative government” manifested in yesterday’s Iowa ruling:
Quite honestly, I have difficulty following this logic. First of all, the court was taking into account the constitutionality of the ban on gay marriage in the first place, and quite rightly found that it was not, in fact, constitutional. Revoking the ban is not activism; it is a reaction to activism.
This seems to me to miss the point quite widely, since the question at stake here is precisely whether the court was right in finding the gay marriage ban to be unconstitutional, i.e. whether the finding of its unconstitutionality was or was not genuinely reflective of the constitution. If it wasn’t, then “activist” and – especially – “lawless” seem quite reasonable appellations. Hence Jacob Sullum, himself no conservative and a very firm advocate for gay marriage:
… this decision, like the California Supreme Court’s similar ruling last year, seems to be another example of result-oriented jurisprudence that ultimately undermines a constitution’s ability to constrain government action and protect individual liberty. If you read the court’s analysis as it goes through the arguments for a gay marriage ban and (correctly, in my view) finds each of them wanting, it’s hard to see how this process differs from what legislators do.
It’s clear that the Iowa constitution’s equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible). So the basis for saying that such a law is inconsistent with that clause today has to be an evolving understanding of what equal protection entails, especially regarding what it means to be similarly situated. But barring a constitutional amendment, judges can implement this new understanding only by reinterpreting the clause to mean something it did not mean at the time it was written. That sort of license can lead to all sorts of mischief, as the evolving understanding of the U.S. Constitution’s Commerce Clause (to pick one especially pernicious example) illustrates.
Assuming – as I know is not entirely uncontroversial! – that laws cannot change their meaning, and that the function of the judiciary is simply to interpret that meaning and not to enact new laws, Sullum seems clearly right to me: whether or not ending the gay marriage ban is, as Erik writes, “an undeniably good thing”, and indeed whether or not he is right (as I think he surely is) to complain that conservative skepticism of judicial “activism”, and the corresponding attachment to “representative government” as an alternative, tends to be every bit as “result-oriented” as the kind of jurisprudence that Sullum is criticizing here, it can still be the case that the Iowa ruling overstepped the court’s proper bounds (read: was lawless). An “attack on traditional marriage”? Perhaps not. But it can, for all that, still be an illicit attempt by a branch of government whose lawful power is only that of interpreting existing laws instead to create new laws where none had existed before. If doing a similar sort of thing wasn’t okay for the Bush executive branch, then what makes this an occasion to cheer on the Iowa Supremes?
Filed under: conservatism, government/law, marriage
I don’t know, John. Frankly the history of this nation and its laws has been revisiting the Constitution over and over again and re-interpreting it to widen the scope of liberty it provided to more and more people. That was, essentially, the impetus for civil rights, the end of slavery, etc. The Founders may not have intended full equality for blacks in their document, but we later interpreted it to mean something else, something more. Now, as I am no constitutional scholar I am trying here to better understand the Iowa court’s decision, and I admit I may be off the mark to some degree. But this still seems to be the momentum of liberty in this country – to take old laws that only extended rights to some portion of the population, and then open those up to encompass a wider swath of citizens.
Now, I hope we can find ways to do this in terms of economic liberty as well, though it will be much, much harder. But that’s another story for another time….
If I may be permitted to veer tangentially, can’t one make the argument that this revisiting and re-interpreting is the trumping of the sort of rule-of-man democracy, over rule-of-law republicanism, that enabled decisions such as Roe v. Wade to be made based on broad re-interpretations — in the case of Roe, granted, interpretations that exacted rights out language not extant in the document?
Erik, you may be on to something vis-à-vis Civil Rights, but slavery was officially banished from the law of the land by Constitutional amendment, not simply by judicial review, the very concept of which tempts me to put that Anti-Federalist cap back on my head.
It may be the “momentum of liberty”, but it’s also the momentum of a lot of other things much more dangerous than that. And Sullum’s point is just that, especially in the hands of the law’s ultimate arbiters, lawlessness in the defense of liberty is no virtue. More generally, my point was that even if you’re right on the substance of the decision, simply asserting that the ruling was a good thing amounted to skating right past the underlying substance of the complaint about “activism”.
E.D.,
Your assumption that a court’s role is simply to expand rights not originally contained in the Constitution is reasonable. That’s what the ‘Living Constitution’ is all about. But it’s not the only way to look at a Constitution; your criticism of Whelan is premised on an interpretive framework that Whelan doesn’t share. From his perspective, the ‘widening’ you describe is ‘activism’ (i.e. changing the meaning of the document in-keeping with the justices policy preferences).
Sorry to double post, but I thought I’d add that from the pro-life perspective, the march of liberty interpretation of Supreme Court you suggest above is, well, deeply, deeply flawed.
The trouble is that the equal protection clause has nothing whatever to do with this question, but it has been applied as if it did. While one could argue that civil rights rulings and laws undid previous unconstitutional violations of equal protection, it simply isn’t the case here. Of course, if protection of children and procreation are not deemed important enough to create a compelling state interest to limit the definition of marriage, there would be even less justification for laws against polygamy. The precedent the Iowa ruling has set is a very bad one.
One can find plenty of examples in the last century of jurisprudence to serve as precedent for judges to say that constitutions mean anything the judges want it to mean, but that’s not much of an argument for interpreting the texts this way. The arbitrariness and shifting standards of this process make the discussion of constitutionality pretty meaningless. At this point, “unconstitutional” is often a word that means “something of which we, the judges, disapprove.”
Of course, it is probably just a matter of time before Iowans amend their constitution to reinstate the ban, and we go through the same absurd back-and-forth all over again. It is rarely a good idea to overturn legislation approved by the representatives of the people. Going to the courts is usually an indication that the law being challenged enjoys such broad and deep support that persuasion and repeal are out of the question. A federalist compromise on this question depends greatly on the electorates of each state being permitted to make their own determinations of how they want to regulate marriage. The logic of escalation in this process means that eventually the Supreme Court will hear a case on this, which will provoke a national movement to amend the U.S. Constitution as so many state constitutions have been.
If there is any chance for the culture wars to become less intense and vitriolic, it is by having regulations of controversial social questions be left to legislatures and democratic processes. That is only way a sustainable consensus is going to be fashioned, and it is also the only way that state and federal judiciaries are going to avoid losing another part of their legitimacy in the eyes of more than half the country. Put another way, “activist judge” would never have become an epithet if judges did not see it as their role to make social policy in place of the legislative branch. There’s a separation of powers argument on this point waiting to be made.
Actually, though, in the long term the question of civil rights may be extended to the unborn as well. Freddie had an interesting post on this a while back. But doesn’t it fall right into the momentum I’m speaking of? That in the end, in the long, long run, the only logical continuation of such a widening will be the eventual acceptance that the unborn also deserve these same civil rights?
Whenever conservatives lob a charge of a judicial activism at a legal decision they do not like, liberals generally respond flippantly that a legal decision is only “judicial activism” when a conservative disagrees with the decision.
I don’t the liberal gut reaction is entirely fair but its not entirely
off base either. Let me say at the outset that while my post come off as combatative/mean-spirited, I am not trying to single you out in any way. These arguments apply in spades to liberal writers, such as Yglesias, Klein, Amanda Marcotte, and Scott Lemiuex. I do think I am being fair though.
First, there’s the judical activist argument itself, which is a procedural argument. When a rhetor uses a procedural argument, they use the following logic.
1.HOW a legal decision was reached is more important then WHAT the legal
decision is.
2. There is a procedural standard that a legel decision should conform
to.
3. Given premises (1) and (2), if the legal decision fails to conform to
the standard in premise (2), then this legal decision is
unjust/invalid/wrong regardless of the consequences of the legal
decision.
On its face, this is a legitimate, reasonable argument to make. In
practice, its bullshit. Here’s why, none of the participants in a
political debate know what the procedual standard is nor how the legal
decision fails to meet that standard.
I am not arguing that you need to be a legal scholar, I am arguing that
IF you are going to make a procedural argument then you should know what
the legal standard and how a legal decision violates that standard.
You clearly no know nothing about state laws in Iowa, the Iowa
constitution, or the legal reasoning that the Iowa supreme court used
overturning the ban on same-sex marriage, or the legal precedents. Moreover, I am assuming you haven’t even read the opinion written by the Iowa supreme court which was over 50 pages. If you knew and done these things, you would state WHAT the the standard is (in this case the Iowa state consitution), explain legal reasoning that the Iowa supreme court judges used, and HOW the supreme court judges reasoning fails to conform to the Iowa state constitution.
Instead, you use a “cite an authority” on a legal issue cop out. This is a favored tactic by someone who is using the procedural argument but does not know anything about the legal standards in question nor how a legal decision conforms to them. It goes like this:
“I don’t know anything about the issues involved here, but I do find the legal decision here troublesome because it seems unpopular with lots of people. Since I don’t know anything about this issue, consider this person over here who says this is judicial activism.”
Of course, since the other side of the issue can match expert for expert, the only way you can determine whether something was judicial activism is if you become informed enough about the issue to determine who is right and who is wrong.
In this case, Jacob Sullum, who is neither a legal scholar nor an expert on Iowa state law or the Iowa constitution, offers a pithy 350-word blog post on why Iowa supreme court ruling is judicial activism. I bet I could find legal scholars who are experts on the Iowa constitution and Iowa state law, who wrote a lot more then 350 words on this subject, that disagree with Sullum (oh hey that would be the Iowa supreme court). I would think it apparent that arguing that “expert said X” is neither interesting nor substantive, when the experts disagree. The fact that Jacob Sullum supports equality for gay couples is a non-sequitur.
Let me reiterate: I am not arguing that need to be an Iowa Supreme court justice in order to disagree with their decision. I am merely asking you to be informed about the procedure that you are criticizing, since the procedure is the issue that you have, NOT the decision itself.
“That in the end, in the long, long run, the only logical continuation of such a widening will be the eventual acceptance that the unborn also deserve these same civil rights?”
Well, no, because the entire language of rights precludes that possibility. The trajectory of ever-greater emancipation, or whatever you’d like to call it, is not going to lead to a result that will be seen as curtailing or limiting the rights of women. The unborn will suffer, in no small part because they cannot speak for themselves and lay claim to their rights, which has always been necessary in extending full protections of law to others.
There is also the matter that the expansion you describe is an expansion of the understanding of freedom as a “freedom apart from,” which is a freedom that I fear too many people will never be willing to grant to the unborn. The obvious complete physical dependency of the child on the mother is evidence that “freedom apart from” is a very misguided way of thinking about human beings, and granting full protections to the unborn as human beings would reveal the serious flaw in how most of us understand our own freedom. It ends up something like this: autonomous individuals have rights; anyone who isn’t an autonomous individual must not have rights, and since every human is supposed to have these rights anyone who doesn’t fit the description of autonomous individual can’t really be fully human. Recognizing the full humanity and personhood of the unborn would expose how wrong we are about ourselves.
Interesting way to look at it, Daniel. I think you’re absolutely correct that our definition of liberty/freedom etc. is flawed and that the “freedom apart” is one way in which this notion of freedom is flawed. I suppose this is one reason I support gay marriage but oppose abortion. I see marriage as the very opposite of “freedom apart” and the inclusion of gays into the constructs of marriage as a good and healthy thing for society. But you may be right about the extension of liberty to the unborn. I hope you’re wrong, but I fear you’re right. Liberty has become a selfish endeavor.
So because I’m not a legal expert, I’m not entitled to offer comment on legal issues? I thought Sullum’s logic was pretty much knock-down: the idea that the Iowa constitution prohibited a same-sex marriage ban as its words were originally intended is a notion that’s simply laughable on its face. Most any legal expert who disagrees with this conclusion would, I think, do so only by arguing that the procedural standard that Sullum is applying – i.e., that the law needs to be interpreted according to standards of original intend – is an illegitimate one; this may be so, and indeed I acknowledged as much in the post. And of course the present round of admittedly inexpert commentary was started by Erik, not by me – my intent here was not so much to endorse Sullum’s (or Whelan’s) position as to try to articulate the rationale behind it, since I felt that Whelan’s point had been missed, or perhaps misrepresented or at least not acknowledged, in Erik’s original post. It seems to me that I’ve got sufficient familiarity with what’s at stake in these matters to make a point like that.
P.S. Sullum’s support for gay marriage is of course irrelevant to the substance of his argument, but it’s worth noting in this context because the standard complaint that conservative accusations of judicial activism are never anything more than complaints about liberal outcomes is, in this case, plainly illegitimate.
This seems to me to get right at the key point: it’s one thing to say that things we disapprove of, or find horribly unjust, or whatever, should be unlawful, but you’re simply setting yourself up as a laughingstock if you advance such an argument by way of the notion of constitutionality. As I’ve said, I find the reasoning behind the Iowa decision rather compelling in the abstract; the idea that that reasoning reflects the text of the state’s founding documents, however, seems a ludicrous stretch.
Quote of the Week nomination: “Liberty has become a selfish endeavor.”
Constitutional terms tend to be broad. It is not “activist” for a judge to use it as a test for a given law; indeed, for a state supreme court judge, doing that sort of thing is central to their job.
The Iowa Constitution has its “laws uniform” section which is what was used here as a basis for equal protection. It is the law of the land, and the Constitution has been maintained for over a century and a half with the involvement of the citizenry and their representative (and yes, maintenance has taken place — what was the section before the “laws uniform” was removed in 1992. It was on dueling, believe it or not.) To say that the judges should have ignored it in favor of some other law is to suggest not that the will of the people shall override, but that the will of the people expressed in the constitution should take a back seat to the will in other laws, which is not how a constitutional system works.
Were the folks who wrote in the “laws uniform” section specifically intending same-sex marriage? Of course not. But that rule is not one of specifics, it is broad, so as to be prepared for a range of specifics. The folks who wrote it did not have our studied knowledge of marriage, its place in the current world, nor our studies of homosexuality which might conflict with their assumptions. The judges in this case were faced with not only a specific complaint, but a specific set of arguments from both sides, as well as this broad law to use in the context of this specific case.
It’s one thing to believe that they got it wrong, but to call them “activist” is to suggest that they purposely didn’t care that they got the law wrong, so long as it got the end result they wanted. That assumption is belied by the careful, thoughtful analysis in the ruling.
If you want to defend the decision on its legal merits, that’s fine by me; again, my beef is just with the notion that mere agreement with its outcome, or commitment to the belief that it’s just another step in the long march of liberty, is enough to conclude that the charge of “activism” is a canard. I’ve little love for Whelan, and I think it’s incontestable that complaints about judicial activism are often baldly opportunistic, but it remains the case that there’s plenty of room even for supporters of same-sex marriage to harbor legitimate concerns about this ruling.
[...] perspective to the discussion of judicial activism the decision has spawned between William, John, and E.D., arising in part due to Mr. Sullum and Mr. Whelan. To be sure, I think E.D. is wrong [...]
Of course, Vermont has now shifted the debate on gay marriage (though not the debate on constitutional interpretation). Opponents of gay marriage have often relied on a supposed opposition to judicial activism — gay marriage being imposed by judicial fiat rather than adopted by democratically elected representatives. Now I suppose we will see whose opposition to judicial activism was merely a cover for their real posiition: gays should not be allowed to marry regardless of the means by which it becomes legal.
Yet this in itself says nothing of the justice or injustice of the law being challenged. Is it really surprising that a tiny and persecuted minority needs to use the courts to challenge a law that denies them equal rights to participate in their society? And is that not one of the primary functions of the court in a well-run democracy? Since when is “broad and deep support” for a law the only criteria for it’s validity in the USA?
I think my point is further driven home by your willingness to use some rather spurious understandings of what it is that homosexuals are demanding from the courts:
Your post is so high-minded, yet this is so patently ridiculous. There isn’t a shred of evidence that homosexual parents harm children any more than heterosexual parents and there is no legal requirement that married couples can or will procreate. Do you believe that homosexuals are trying to get married so that they can cause harm to children? And yet you seem to espouse a desire to have less vitriolic culture wars.