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I am not asking for a perfect system. The Law though is different. It’s suppose to be blind, fair, and unbiased. That’s the mythology of the law. So the idea that 10 or more viewpoints at UC exists means there is a lot of bias in the law.
We have people who are allowed to have bias in our system. Elected officials. They can of course be tyrannical. I can and other citizens can have opinions on them and their actions. They can do bad things like legalize slavery. It’s not the job of a judge to have an opinion on slavery. If the law written by elected officials says that you are a slave then a judge is required to rule you are a slave if you challenge it in court. That is black and white. The Law of the Land. We have a system for people to have bias and it’s called Democracy.
So you are asking for a perfect system? Or at the very least, that people has to perfectly attune to the textual reading of the laws? You saw in the other example https://novehiclesinthepark.com/ of how that quickly becomes untenable no? Why must we wallow in the disappointment of cynicism? Why isn't optimistic realism (or I suppose optimistic nihilism) an option for you? (You've obviously already rejected the delusional mythological idealism).
If you have a society of peoples that decided to enslave others, don't worry, there will plenty of judges who will rule slaves are slaves, and the judges that don't won't be judges of that society for very long.
In this whole conversation, I've come to realize that you have many things you consider in very black and white processes. Law has to be black and white. Democracy is allowed to be not black and white, Law is not allowed. Do you realize that in your thinking?
First, I specifically said I do not want Judges to be a perfect system. I specifically cited slavery which is not perfect for a judge to declare someone a slave. It is their role in our society.
You shouldn’t cite “no vehicles in a park” because multiple people have responded that it was EASY to understand the rule. Vehicles has a specific meaning in the vernacular. We understand what it means. (As an aside in Constitutional Law one issue is the vernacular changes on 200 year old laws).
On the point of slaves being ruled slaves I am specifically saying Judges often do NOT follow the law. You seem fine with this. I am not. This is why you like the debate societies of Westwing where the person who says the most interesting argument gets to ignore the law and just do what the want to do.
“In this whole conversation, I've come to realize that you have many things you consider in very black and white processes. Law has to be black and white. Democracy is allowed to be not black and white, Law is not allowed. Do you realize that in your thinking?”
I 100% realize that is what I am thinking. It’s black and white. People who are elected get to have biases in decision making. People working as judges do not. This is called rule of law. It’s the same as the difference between an engineer that designs trains and one who operates trains. Designers get to have biases on what they want. Conductors operate the train that was designed.
And since well the people in The West Wing did not do Rule of Law I no longer see why I should play their game anymore as a Republican. Just give me 6 SC Justices with 80 IQ who vote the way I want them to vote.
The issue is that in modern constitutions, you usually have some higher principles at the start that trump any lower one and any lower law has to be interpreted in the context of the principles laid out in the constitution. And the higher you go in these principles the more vague it gets. So from one point of view, this allows us to interpret the law correctly according to the intent expressed in the top rules. From the other point of view, appeals to those vague principles can allow one to derive anything and everything, and this makes a joke out of any lower level laws that a particular judge dislikes.
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If a society democratically, representative or otherwise, legalize slavery, do you expect judges in that society to uphold such a law?
You saw the actual statistical results captured by the site right? That 20% thought a horse is not a vehicle while 80% thought it is right? That there are many things easily agreed to by a large majority, but then with differing details, quickly, opinions diverged right? Also, "multiple people have responded that it was EASY", how do you know that's not just a loud minority? Also just because the majority agreed on something, when does it become tyranny of the majority?
I would appreciate you don't draw up a straw-man of myself so you can fight. I do prefer following the law. I also do prefer judges follow the law. There are plenty of supreme court decisions I dislike but I think is following the constitutional law (for example Dobbs). What I am arguing for is that: you might think they are doing "interpretive word games", but for them, they have strongly held beliefs on how to interpret the law. You've essentially already pre-categorized any way of thinking that isn't like yours as to be "fast and loose" and therefore dismiss the end results.
Well guess what, it's because I changed my mind after listening to people who I disagree with when they make a "rational" point. I think we are similar in this seeing as we're both here, in a place where debate and communication is prized, where opinions and ideas can change. Don't you see? Debate, winning it in public, finish or re-opening a fight, everything contributes to how people will understand and apply the law, or influence how laws are written or stricken down in the future. That is the game!
This brings me back up to the very first question. If a society democratically, representative or otherwise, legalize slavery, do you expect judges in that society to uphold such a law? Is this what you expect? Is this what you want?
"Well that's just your opinion man". It's a very holier-than-thou attitude where you get to define what the "Rule of Law" is and then therefore can decide who is a cheater or not. When that's the point, the one who wins decides what the law means. Also, because if you don't persuade people but just force people, that's just plain tyranny.
I am very clearly if a country Democratically enacts slavery judges 100% have to enforce it. That’s how a constitutional republic works. You seem to disagree with this. This is why I no longer give a shit about legal opinions. You vote for judges that do what you want them to do and I want judges appointed that do what I want them to do. Judges are not the State. They don’t get to make law. They need to uphold the law as written.
My point here though when the top law schools have 10 different legal theories the system basically became figure out the result you want and then pick the theory that says your allowed to do that.
I assume you’re a Dem because West Wing is coded Dem. In the old days the Dems did what I am describing. Figure out what you want like a right to abortion or gay marriage and then pick the theory to use. Now they had smart people who wrote well but it was really bullshit. Now we’ve downgraded to not even pretending anymore. Just put the wise Latina on the court who doesn’t need to follow the law because she’s like wise or empathetic or something. Just give me based judges when the GOP appoints someone now that will do what we want.
The system is the same. Law is just politics and has been least since FDR. The general public doesn’t read the arguments anyway. If I want to bang birthright citizenship it doesn’t matter to me if we have some smart guy who digs up transcripts from the 1860’s to justify the position or some 90 IQ 25 year old whose opinion is nothing more than I don’t like Mexicans.
I am not happy about the slavery for sure, but I am happy you are consistent. I was just confused because you said you don't want a perfect system but then call for judges to be automaton adhering to the text. I call the system you want "perfect" because that system has no loopholes nor room for mercy or second-chances. It is like the crude simple software, if there are bugs, the only way is to patch it. But clearly the legal system, and especially the case in complex software, has fallback for the human, the messy, the dirty "interpretive" stuff. Even in sentencing guidelines there are minimums and there are maximums. That's why there is jury and jury nullification. Of course when it comes to the Supreme Court where the hardest of cases land, there will be more "judgment" to be made.
That I agree with you, legislating from the bench is not a good idea for it undermines the power and trust in the judiciary of the people. The thing is even defining what is legislating from the bench gets a debate. Unless you're just going to propose might make right again.
Well that's different. I respect judges who are consistent in their judiciary theory. I also respect consistent change in judiciary theory. Sometimes the theories would come to surprising results independent of political opinions or preferences. It's why we celebrate cases like when John Adams defend the British soldiers after the Boston Massacre. I don't like judges who are inconsistent and flip-flop theories or twist their philosophy to get the desired results. And I think that's the crux between me and you. You are very clear about getting the results you want, while I do believe in having judges with independent and clear legal principles.
We have wild political allegiances in this place. Who knows really :D.
This is just another form of the Israel/Palestinian debate where both sides just point at each other and say "you guys started it". For me, what you're proposing is just might make right. And look, I think you do have a formal legal theory you ascribe to, sounds to me like what Gorsuch has which is originalism when it comes to constitutional intepretation and textualism when it comes to statutory and regulatory matters. That I can respect as long as that matter is consistent. At the very least, this does mean that judges can rule in surprising ways.
And actually by this point, I think we have almost the same position and let me state it out to see what we overlap vs what we disagree on:
It matters because when the pendulum inevitably swings, we want good laws to be written on good arguments that most would agree with.
The difference between my preferred originalism and your consistent with their theory is your judicial theory does not constrain you and you can just make up law. That’s what living constitutionalism accomplished. If I play the game by those rules. You win. We will not be playing the game by those rules anymore.
I will no longer play the game those rules. Common Good Judicial Theory is a real consistent theory. It too lets me justify any reading into the law.
If neither side is constrained by text then we have created a Senate and not a Supreme Court.
Just as you can come up with countless sources and examples where the people you would call living constitutionalism adherents twist and interpret the law that besmirch their professed theory, I think I can also find countless sources and examples where the people I would call originalist adherents twist and interpret the law that besmirch their professed theory. I'm not sure why you think your side are "guardians of constraint and defenders against legislating from the bench" and that somehow my side "shot first" and therefore you feel justified in throwing the rules of the game. Don't use us as an excuse.
From my perspective, as society polarizes, the rules breakdown. Both sides feel bitter from transgressions of the others and whole swathes of people like you want to just flip the game and start with something new. What I worry about is that in the zeal and rush of grabbing power, boots are pressed on human faces. The real hard work, and real peaceful solution, is to still be at the table and keep debating and arguing.
Anyway, on the other hand, obviously you're right. The Supreme Court has always been just a different level of political voting. In a way, the makeup of the court represents what the people must have wanted at some point, just several time removes. To me that's fine, they are the best society could agree with at that particular moment in time. And hopefully they are good jurists who can guide and constrain government from overstepping.
And look, I'm not even saying originalism is wrong. From my perspective, assuming democracy survives, if all judges are always all originalists and they are actually adhering to straight and narrow originalism, guess what, the people would organize and vote and make sure laws are written in such a way that originalists can't refute the intention of the laws. Or yes, in the current system, they vote in legislators who would not appoint originalist judges. And the pendulum swings and it goes on and on.
I can even tell you a bad example on my side of the above. Look at this quote by a recent case in NYC "I believe the facts in front of me shows that this defendant poses a significant danger to society,’ said Judge Indira Khan. ‘I am very appalled by the alleged nature of this case and the potential for greater harm, however my hands are tied.’ . Notice how the judge hands are tied? Now one could say maybe she didn't try hard enough, afterall she is a Dem judge in a very blue city, but I am choosing to believe her at her words instead of thinking she just lies.
For what its worth, I really would rather people bother to lie than to not lie at all. That would be a real breakdown of shame, a real arrogance of the dominant. "They don't even bother to lie badly anymore". At that point what would the minority do?
First. Your side doesn’t even pretend they are NOT legislating from the bench. It’s why they use terms like “Living Constitution” or nominate a wise Latina. They aren’t even pretending that they are not legislating from the bench. Whether the right has legislated from the bench I can only think of times when the legislated in the lefts direction like Sandra OCconnor supporting affirmative action as a temporary measure for 20 years despite being unconstitutional.
If the law is unbiased which is the mythology on the law then there shouldn’t even be Republican or Democrat judges. They are just applying the law as written. The only reason for the GOP to show restraint is so the average man still believes that myth, but textualism ties their hands when the other side applies theories that give them far more latitude to create policy how they want.
I don’t believe in lying. It’s a cancer. Exception being for politeness telling your aunt she looks good.
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If the Judges do not uphold the law, then power does not flow through the law. If the law does not channel power then it is pointless. People wish for power. To the extent that you tell them that power is channeled by law, when it is not in fact channeled by law, you are lying to them. When they figure out that you have lied to them in this way, you will lose the power to persuade them about anything ever again; if you will lie in this way, you will lie in any way.
Right, but power remains, and the law would have been changed to whatever power wants it to be. I was simply trying to find what is the true extent of what @Opt-out really means by his philosophy. I would have been happy if they said "yes, the judge should uphold the law".
I would certainly argue that it's better for the judges to uphold a law against slavery. Judges not upholding the law fixes nothing and breaks much; the win is temporary, the costs are lasting.
Right, but it's more interesting to hear about someone saying judges should uphold a law in favor of slavery. That's judicial consistency.
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