Posted on 07/20/2012 12:11:33 AM PDT by Meet the New Boss
We agree there. When bona fide ambiguity exists, it is right and proper to use precedent in deciding how to resolve it. On the other hand, it's important to recognize that judge-made law should be considered only as a necessarily expedient to make up for the lack of legislative clarity. When legislative ambiguity compels a judge to invent his own rules, the legislature should, at its earliest convenience, create new legislation to resolve the ambiguity and render the judicial precedent irrelevant. The legislature should feel no obligation to resolve the ambiguity in the same manner as the judge did, but should make clear its intentions, no matter what they are.
Take just the First Amendment as an example: “Congress shall make no law abridging the freedom of speech.” ... If every judge presented with a new case arising under this clause were free to ignore the principles established in prior case law there would be no ability for citizens to know what the law is, as it would vary radically depending on the happenstance of the individual judge deciding the case who would be free to ignore the prior developed body of law.
And what basis is there for believing that the First Amendment was intended as anything less than an absolute bar against Congress passing legislation whose design or substantial effect was to interfere with free persons' exchanging ideas and information in any and all such manners as they see fit, with very narrow exceptions only for communications whose restrictions would otherwise be provided for in the Constitution (e.g. the Constitution defines the crime of treason, and the Constitution provides that writers may be given, for a limited time, exclusive control over their work). Note that the First Amendment is a restriction on the federal government; the Founders clearly intended states to have power that was less restricted.
Further, I would aver that before the government started systematically working to keep jurors ignorant of their rights and responsibilities, one of the proper roles of the jury was to uphold the Constitution, giving substantial but not total deference to judicial instruction. With regard to the First Amendment, the jury should examine the question of whether they feel that the enforcement of some particular statute in the case before them would by design or substantial effect impair the ability of a free person to communicate ideas or information to another free person who would wish to receive them. If the government cannot consistently convince jurors that its actions should not be considered infringements of free speech, that would be a pretty good sign that its actions probably are infringements upon free speech.
The Constitution certainly DOES give Supreme Court decisions authority, by the very fact of vesting the judicial authority of the United States in that body.
It gives the Court over the parties who appear before it. That is different from saying it has authority over everyone.
The Supremacy Clause is not limited to statutes of the United States, rather it extends to all “laws” of the United States made in pursuance of the Constitution.
Even by such a reading is there anything that would imply that the Court's authority should be regarded as superior to the Constitution itself? If the Court were to issue a ruling which were in clear, direct, and unambiguous contradiction to the text of the Constitution as ratified and subsequently amended under the Article V, should one regard the "Constitution" as having been amended to fit such ruling?
The proper way for the Supreme Court to reverse rulings is to explicitly hold that such decisions, like Roe v Wade and Plyler v Doe, themselves are contrary to well-reasoned precedent that was soundly founded on the original intent of the Constitution, and NOT based on a claim of changing social attitudes or the peculiar jurisprudential philosophy of the judge or justice ruling in the case free to ignore the prior established body of law.
I'm not quite sure I follow. It sounds like you are saying the proper way to reverse Roe v. Wade etc. would be to find that they failed to adhere to precedent. But if one accepts the notion that all court decisions become law, why would not the fact that Roe v. Wade mean that all properly-behaving courts must forevermore regard it as settled law independent of whether it properly considered any precedents before it?
If all judges were always honorable, court decisions would be written in accordance with the law, and thus what the law required and what the court ruled would always be one and the same. I'm not sure whether judges were consistently 100% honorable, but I would expect that they used to be better than they are today. In today's judicial climate, saying that anything a judge writes must forevermore be regarded by honorable judges as law unless superseded by some other (possibly less honorable) judge basically grants carte blanche to leftist judges to rule however they see fit, while binding "honest" judges to the whims of the leftists. If rulings which are contrary to the Constitution are not recognized and denounced as illegitimate, what protection can the Constitution offer against those who would write them?
You said this earlier: “In cases where existing law is ambiguous and a judge has to invent rules sufficient to resolve the ambiguity, other judges who are faced with the same ambiguity should resolve it the same way. On the other hand, in any case where ambiguity genuinely exists, a judge should be able to justify his interpretation of the law as being consistent with the Constitution and statutes without having to cite precedent.”
But it is not possible for both (1) all judges faced with the same ambiguity resolving it in the same way and (2) every judge faced with an ambiguity being entitled to have his own interpretation considered binding without having to adhere to precedent. These are inconsistent concepts. The only way to achieve the uniformity of the law in point (1) is to require courts to respect the interpretation established by higher courts in precedent cases, contrary to point (2).
Then you later say this: “When bona fide ambiguity exists, it is right and proper to use precedent in deciding how to resolve it. On the other hand, it’s important to recognize that judge-made law should be considered only as a necessarily expedient to make up for the lack of legislative clarity. When legislative ambiguity compels a judge to invent his own rules, the legislature should, at its earliest convenience, create new legislation to resolve the ambiguity and render the judicial precedent irrelevant.”
But the ambiguity we are talking about is in the Constitution, not legislation. And ambiguity is inherent in the existence of a written Constitution. That is, unless you have a written Constitution of 10,000 pages that anticipates every circumstance in which constitutional principles will have to be applied and spells out how they are to be applied.
Say Congress passes a law against burning the flag. The legislation itself is very clear and not ambiguous. The question is, is burning a flag “speech” such that this law is invalid because of the First Amendment? The ambiguity arises under the Constitution, because the Constitution itself doesn’t say whether burning a flag is considered speech or not. Under your way of thinking (at least as to point (2) above), every court would be entitled to decide this issue without regard to how any other court has ruled on this in the past. One flag-burner gets convicted, another gets off. This goes on ad infinitum, because the issue can never be settled, because no judge would be bound by what the Supreme Court or any other court has said on this question in the past, since principles of interpretation set forth by justices or judges would have no binding effect under your way of thinking.
No one would know whether it is legal or illegal to burn the flag. The outcome would depend entirely upon the whim of the judge whom the case happens to come before.
Multiply that case by the many thousands of situations in which the Constitution must be applied to various real life situations and the result would be utter chaos. It would be impossible for citizens to know what the rule of law is and the immense power given to each judge would encourage corruption to run rampant. Furthermore, in deep-blue areas of the country, far-left judges would be free to impose a radical ideology without any control, because even if their radical opinions are overruled on appeal, the next time the same type of case comes up they can continue to impose radical decisions because they would not be bound by court opinions issued in the past.
Each judge needs to evaluate both (1) what the codified law says, and (2) what should be done about it. In determining what the codify law is, if one party claims it says X, and the other claims it says Y, then if one of the claims is consistent with the text of codified law and the other is not, then the one which is consistent with codified law should rule. A judge should use precedent to decide among interpretations which are consistent with codified law, but not to direct an interpretation which would be inconsistent with it.
Even in cases where codified law is clear, there may be cases where precedent may compel an outcome that would appear to be inconsistent with it. I would posit that while it is right and proper in some cases to consider even bad precedent in the "what to do it" part of their decision, they should do so not by pretending that such precedent is or was part of codified law.
No one would know whether it is legal or illegal to burn the flag.
If the Supreme Court were to declare that it is legal to burn the flag, then whether or not that decision was decided legitimately, the fact that it had been issued would serve to bar prosecution of anyone who burned the flag until such time as the Court were to decide otherwise, on the basis that anyone whom the government tried to prosecute could claim entrapment on the basis of the Court decision.
If someone were prosecuted for some activity which was perhaps similar to burning the flag, but not quite the same (e.g. burning politicians in effigy), and such person cited the court decision authorizing flag-burning, a court would be faced with two questions: (1) does the Constitution protect the activity in question, and (2) did the defendant have a reasonable belief (perhaps based on the earlier decision) that it does so. Under current practice, a court would have to either regard the new activity as protected under the Constitution, or that it was not. I would suggest that in many cases the proper outcome would be a finding that the activity was not protected by the Constitution, but a belief that it was protected would have been reasonable. Further, even if the Court does not by itself determine that a defendant's belief is reasonable, a defendant should retain the right to argue before a jury that the belief was reasonable; jurors should be instructed that they believe the defendant had a sincere belief that the activity was protected, and if they would have regarded such belief as reasonable prior to the court decision declaring it otherwise, they should acquit on that basis.
Incidentally, an issue which is at the center of a lot of bad jurisprudence is the notion of "good faith". Both the Constitution and Common Law rely upon good faith to a substantial degree. Because it is generally impossible to read people's minds--especially retroactively--it is often necessary for legislators or courts to write guidelines for things which indicate good faith or bad faith. Unfortunately, things which should be regarded as presumptive evidence (meaning someone who does XX is likely acting in good faith) are often regarded as definitive proof (meaning that someone who does XX shall be deemed to have been acting in good faith, any contrary evidence notwithstanding). Combining this with Court's tendency to use "ratcheting precedent" has lead to an erosion of people's rights, since every time the Court accepts someone as having acted in "good faith" who did just a little less than what the Court had previously required, that level of action becomes the new target, implying that someone who does "almost" that much may now be regarded as having acted in good faith.
The proper course of action would be for the Court to recognize both that (1) it is possible for someone to perform some "good-faith-style" actions while still acting in bad faith, especially if they know the minimum they need to do to be regarded as acting in "good faith"; (2) a person should only be regarded as having made a good-faith effort to comply with codified law if they in fact made a good-faith effort to comply with codified law. Someone who is trying to do the bare minimum to meet a standard which is looser than codified law is not making a good-faith effort to meet codified law.
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