Saturday, September 26, 2015

Taking an Un-American Stance

In English the word law includes both statutes and judicial precedent.

"The judgment of a competent, court, until reversed or otherwise superseded, is law, as much as any statute." (Black's Law Dictionary, 1910)

American Heritage Dictionary
a. A statute, ordinance, or other rule enacted by a legislature.
b. A judicially established legal requirement; a precedent.

Webster's (1828)
11. Unwritten or common law, a rule of action which derives its authority from long usage, or established custom, which has been immemorially received and recognized by judicial tribunals. As this law can be traced to no positive statutes, its rules or principles are to be found only in the records of courts, and in the reports of judicial decisions.

One will find similar entries in other dictionaries as well. Some will simply have general statements about binding rules, but where you find mention of statutes, look and see whether judicial precedent or "common law" is mentioned. I don't think you'll be disappointed. I've been told that this is an un-American approach, but I can live with that. Words have meaning after all, and as general rule, the dictionaries are great sources for those meanings.


Friday, September 25, 2015

Distinguishing Reality from Fantasy

No matter how good of an argument for Departmentalism my exceedingly brilliant friend and brother, Steve Hays offers (here, for example), Departmentalism is a pipe dream. It's not the way America actually works.

In practice, in America, the Supreme Court has a final say. Knowledgeable advocates of the position Steve Hays mentions continually rue this. For example, Ed Whelan, as quoted by Steve Hays in an earlier post, states: "We live in a legal culture besotted by the myth of judicial supremacy." And again: "Although there are some scholars, both on the right and on the left, who challenge it, most lawyers across the ideological spectrum, having suffered the detriment of a modern legal miseducation, embrace it." In other words, Whelan's position is a minority position that reflects the way he thinks the system should be not the way the system actually is.

That said, I don't think any of the arguments for Departmentalism are very compelling. For example, Whelan argues (quoted by Hays):
It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision.
Whelan is whiffing. There are at least three strikes there.

1) Although in some cases the Supreme Court decides whether something is unconstitutional as applied, the Supreme Court often decides whether something is unconstitutional on its face, and consequently void. Whelan tips his hat to this point, but doesn't seem to realize its far-reaching implications.

2) Not all of the Court's decisions relate to the Constitution. Sometimes the question requires interpreting a piece of legislation and deciding what the legislation means. We'll come back to this issue shortly.

3) In America, no one has to "regard the law as unconstitutional" (in the sense of agreeing that the Court decided rightly) nor must they "accept and follow the rationale" that the Court offered. They are free to think the Court decided wrongly. However, even if they disagree with the ruling, they have to obey the ruling until it is overturned. That's true whether it's a really controversial Constitutional issue or a less controversial legislative issue. And that is how the system works. It's easier to overturn decisions about the meaning of statutes and much harder to overturn interpretations of the constitution. But the same rule applies.

According to Whelan, the Court didn't come up with judicial supremacy until 1958. That kind of claim runs face-first into a more complete history of the situation (see here, for example). Famous cases along the way include the Court striking down the original income tax law, leading to a Constitutional Amendment to overturn the court's decision.

The most bizarre part of Whelan's argument is this: "But none of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge’s view that a law is unconstitutional." What would be the point of having a judiciary that no one had to obey? The idea that the Supreme Court's decisions on constitutional matters are just advisory is just nuts. One doesn't have to agree with the Court, but one does have to obey the Court.


Tuesday, September 22, 2015

Judicial Supremacy

In a number of great posts at Triablogue, Steve Hays has raised the question of the legitimacy of what he terms Judicial Supremacy. His question is not totally illegitimate, even though it in no way rebuts (in fact, it presupposes) my argument that Obergefell is law. So, let's briefly consider the question of so-called Judicial Supremacy.

The US Constitution is a great document, but it has certain gaps that have been noticed over the last two centuries of use. One of those gaps is the question of whether the Supreme Court's interpretation of the Constitution should be treated as better than the President's interpretation of the Constitution or the Congress's interpretation. When the branches of government disagree about what the Constitution means, who wins?

In practice, i.e. the way things are, the Supreme Court's interpretation wins. That's the way it has been, almost without interruption since the time of the founders. There are some rare situations that have challenged that status quo, such as when around 1832, President Jackson supposedly said "John Marshall has made his decision; now let him enforce it!" Nevertheless, if someone wants to know how the American system actually works, the answer is that the Supreme Court's interpretation wins.

In theory, the answer is not quite so clear. After all, each branch swears allegiance to the Constitution. If the Supreme Court's decision is not just wrong, but actually contrary to the U.S. Constitution, then the Congress should not make laws consistent with the Court's decision and the President should not enforce either the Court's decision or any other unconstitutional laws. In other words, each branch seems to have an independent duty to make sure that the Constitution is obeyed.

Of course, a lot of the controversial Supreme Court decisions don't fall into that theoretical category where the President would have to choose between contradicting the Constitution and following the Court or contradicting the Court and following the Constitution. For example, while the recent Obergefell decision may not be an objectively correct interpretation of the Constitution, it's much harder to argue that obeying the rule in Obergefell would violate some other part of the Constitution.

If one wished to argue that it does violate it, one would presumably rely on the "reservation of powers" clause or something like that, and suggest that obeying the Supreme Court would require usurping rights reserved to the states. On the other hand, that argument does not seem to have a lot of teeth. The real problem with Obergefell is its objective immorality and/or its objectively unreasonable interpretation of the Constitution.

It seems to be much less compelling that the President or Congress could simply disregard a Supreme Court decision because they don't think it was justified, even if they don't think it would violate the Constitution. After all, what if the Court did that? In other words, what if the Court didn't say laws were unconstitutional, but simply refused to treat as valid laws it didn't think were justified? That would seemingly potentially cause chaos.

Thus, in cases where there is not a clear inherent conflict between following the Court and following the Constitution, it seems that even on a theoretical level there is a legal (though not moral) obligation to follow the Court.

That's still not actual Judicial Supremacy (just so-called supremacy) because - as I've previously pointed out - there are checks and balances against a runaway judiciary. One check is that judges can be removed. Another check is that Constitution can be amended. The former option can provide new judicial precedent that overrules prior precedent. The latter can simply directly overrule the precedent.

Steve's biggest challenge to this was:
But since you refuse to challenge judicial supremacy, your appeal to impeachment or the amendment process is preemptively derailed by the very institution you presume to rein in, given the incontrovertible prerogative you ascribe to it. If the Constitution only means whatever judges say it means (a la Chief Justice Hughes), then they can "interpret" the Constitution to immunize judges from impeachment or forbid the abridgment of their authority.
Steve's argument here is wrong. What Steve should say is that if the Supreme Court were consistently given an incontrovertible prerogative, they could avoid impeachment and ignore Constitutional amendments. But the current American system does not give them that level of incontrovertible prerogative. The American system lacks that kind of consistency, and as a result does not have that absurd outcome.

Steve may want to argue that the American system would be better if some changes were made, or Steve may want to argue that the American system is inconsistent. Both of those may even be legitimate criticisms (not of me, but of the American system). But both of those arguments from Steve presuppose the point my original article made, one which my friends need to hear, namely that although Obergefell is a very bad law, in the American system it is law.

Monday, September 21, 2015

Bad Law is Still Law

Steve Hays has a thought-provoking post (link) sparked by my own previous post (link). Since his post doesn't seem to directly dispute the central thesis of my own post, namely that Obergefell is law, no rebuttal is needed. In fact, I find a lot of points in Steve's post with which I agree - or at least I think that there are issues worth considering.

For example, Steve wrote: "Whether executive agency regulations should have the force of law is hardly indisputable." Whether they do have the force of law is different from whether they should have the force of law. In practice, they have a slightly different effect from legislative law, but they are (in general) still laws that people have to abide by. Whether this should or shouldn't be the case is essentially academic.

Moreover, Steve's point about executive agency regulations helps underscore the point of my original post. After all, while agency regulations may have disputable standing on some academic level, judicial precedent is not disputable.

Steve commented (regarding agency regulations): "To my knowledge, that's not something the Founding Fathers envisioned." Whether or not they did, they definitely envisioned judicial precedent as law.

Skipping over other interesting things Steve said, toward the conclusion of the post, Steve raises a question of whether there should be judicial supremacy. If the question here is founder's intent, it's worth noting that Judicial supremacy goes back to 1803 in which the Supreme Court first declared a law void based on the law being unconstitutional. That was in a case brought against President Madison, who was one of the founders. Once again, there is a sort of academic argument to be made that the final determination of constitutionality should lie in the Executive or Legislative branches, but in practice that's not where the American system is today.

Today, even when the Supreme Court makes bad Constitutional decisions, its decisions stand as law until either they are overruled by subsequent Supreme Court decisions or the U.S. Constitution is amended. That's how the system is, whether or not that's how the system should be. I leave the should be question to the academics and the rich.

As a result, Christians should not go around making foolish claims that Obergefell isn't law. They may oppose it, but they should recognize it for what it is.