Who Controls Culture? Not the US Senate....

by Cliopatria

On Nightline last night, in a montage of Senate debate on the Hetero-Only Amendment, some Senator was caught saying "We need to send a message to the courts that we control the culture of this country." I couldn't decide whether to fall down or laugh out loud, so I just sat there."Control the culture of this country"?!?

I looked it up [PDF]. It was Senator Sessions, from Alabama, and the full quote is:

I believe this body can make a difference. I believe we need to speak on this issue for several reasons. One is because we need to send a message to the courts that we control the culture of this country, we control how intimate relationships like marriage ought to be defined; that is, we the people, and not unelected, lifetime-appointed judges.

The full version is almost as funny as the excerpt. Start with the now-conventional idiocy of railing against judicial activism, as if an independent and active judiciary were not a coequal branch of the government and essential to a healthy democracy. I said before:

"judicial activism" is a shibboleth, code for"decisions we don't like." Judges are required to interpret the law, when cases don't quite fit the clear language of the law, and they are required to mediate cases where rights are in conflict, and they are required to provide a check on legislative actions when those actions violate constitutional protections. That's not"activism"; that's doing their job. It's bad enough that we've got mandatory sentencing [Update: Not Anymore! at least not Federal] and immense prosecutorial discretion handcuffing judges: now there is this rhetorical attack on their fundamental checks and balances role.

Then you compound it with hubris of epic proportions --"we control the culture of this country" -- and the conceit that the Senate is"we the people" instead of a millionaire lawyers club most of whom haven't cast more than a twentieth of their votes across party lines.

As my colleague so succinctly put it,"You'd think that the words would catch in their throats ..."

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Richard Henry Morgan - 7/16/2004

PS

It would be a weird world, and certainly disfuntional, if a court could never go beyond precedent -- that would make a court slaves not to the concepts of the constitution, but to the particulars of previous cases. 'Activism' can't be reasonably defined as going beyond precedent, but as going beyond the concepts inherent in the text. Some are fuzzier than others. Just what is 'due process'?

Richard Henry Morgan - 7/16/2004

It's when you start to put meat on the bone, that it starts to become fuzzy. Is it a violation of equal protection to count a ballot a no-vote in one county, and an identical ballot (identical in all relevant respects) count as a vote in another county, under the same laws and during the same election? How's that for an explosive test?

The Supreme Court had never gone so far before as to say yes, it is a violation. Then again, they had never said no. Thus, the decision was unprecedented, but was it unprincipled? What degree of identity is required for equality to be satisfied?

Derek Charles Catsam - 7/16/2004

How on earth is "equal protection under the laws" fuzzy? All citizens deserve equal protection under the laws. Am I missing something?
dc

Richard Henry Morgan - 7/15/2004

I agree, particularly with your last line. The problem is there is a stopping point to the appeals process -- the Supreme Court. They can turn something unprotected (say, abortion or gay marriage or symbolic speech or, from the opposite side, state sovereign immunity) into a right that requires a supermajority to overide. The court was never designed as a forum for solving political disputes, nor for creating countervailing individual rights to offset the extended powers of federal government granted by the courts. Interpreting the law is difficult enough, without taking on extra burdens for which it was not designed.

Jonathan Dresner - 7/15/2004

Change usually happens slowly, gradually, rather than in big, easy to codify chunks. Once the reinterpretation has happened (often to cover the fact that current practice has evolved, not to break new ground) there is no need to amend. That's easy.

Yes, judges can go too far. That's why we have appeals processes, a Congress that can speak to the issues, and an impeachment process. No, they are not easy processes, but neither do judges make easy decisions. But to define all judicial interpretation and extension of law as "activism" and out of bounds is silly.

Richard Henry Morgan - 7/15/2004

Will governement seizure of property ever become so common that "the people" will feel threatened by it? I doubt it. The most common way for private universities to physically expand is to get the government to seize property on their behalf, and call it a "public purpose". The victims are usually the powerless, who should have a friend in the courts, but don't.

I'm not sure I understand your argument, Jon. Is it that there can be no problems associated with activism unless "the people" complain? Or is that complaining is simply part and parcel of what defines 'activism' -- that it has no content as a charge apart from the charge itself.

You point out a specific problem. Amendment is much more difficult to achieve than simply amendment by reinterpretation. By the latter method a minority can rule, as amending the constitution requires super-majorities. I could well ask you the same question -- if the reinterpretations were so salutary, why not go the amendment route? We both know that answer, don't we?

Jonathan Dresner - 7/14/2004

And if Congress, or "the people" felt strongly that these interpretations were incorrect, they could have amended the constitution to clarify the issue. Make specific proposals or stop whining.

Derek Charles Catsam - 7/14/2004

Chris --
Why use this post to try to fight other battles? The ICJ decision IS nonbinding. It just is. I do not know how else to say it. It is like dealing with someone who simply denies that 1+1=2 or that the Holocaust happened. Don't conflate the two issues, or we won't get a good discussion on either, but you cannot just sit back and try to pretend that you have the final word on this. People are able to go to the original discussion, but I think it is pretty clear that you are wrong on the ICJ question and right on this one.
dc

Richard Henry Morgan - 7/14/2004

People, of the left and the right, do tend to scream "activism" when they get a decision they don't like. Take Bush/Gore 2000, for instance. Were the Repubs (rather than the Dems) poised to profit from different standards in different counties for what constituted a valid ballot, and the Court had invoked equal protection to bar that, Dershowitz would have written a book praising the decision rather than condemning it. Certainly the decision went further than any prior decision in that direction, which makes it unprecedented, which is distinct from saying that it didn't follow as an implication from the principle of equal protection.

But 'equal protection' is sure fuzzy, at the least. Is 'speech' fuzzy? Is 'commerce' fuzzy? I don't think so, yet both have been stretched beyond their elastic limits. But consider the language of the court on marriage. It says it is a fundamental right. But a fundamental right can't be denied without due process. How then do states deny marriage to ANYONE without a due process hearing? The court sometimes waxes lyrical in its rhetoric, without considerig the implications. Does one have a property right to welfare? The court says yes. Does one have a property right to an education? The court says yes. Property seems stretched beyond recognition. But then it seems diminished when it comes to the fifth amendment -- a 'public purpose' becomes anything a governement says it is, which makes the language nugatory. One can interpret even a constitutional provision out of existence.

chris l pettit - 7/14/2004

Thanks for the shout out the other day by the way...

And thanks for the note in this post about the silliness that is accusations of judicial "activism" when confused with interpretation. As a legal scholar and practicing international lawyer, I find this egregious and annoying stance even worse than the one that is currently circulating that the ICJ decisions (even the advisory ones) are somehow "non-binding."

As if the Congressmen actually represent anyone outside the top 10% of Americans (of which they themselves are a part)...

Democracy my foot...oligarchy

CP
http://www.wicper.org