@naraburns comments on "Culture War Roundup for the week of April 10, 2023

Culture War Roundup for the week of April 10, 2023

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naraburns nihil supernum 1yr ago · Edited 1yr ago

Don't sleep on this excellent Caplan piece. The man is a national treasure.

In "Lawsuits are the Hitman of the State," Caplan makes the case that the Texas "Heartbeat Act" is functionally equivalent to workplace discrimination laws that punish racist or sexist remarks.

(One thing I would be interested to see further discussion from Caplan on is the development of the idea that having a "job" is a "right," but he doesn't go into that in this piece. Basically, the Constitution is a document of enumerated powers, meaning the federal government can't--in theory--do anything the Constitution doesn't explicitly allow it to do. But the judicially-crafted breadth of the Fourteenth Amendment, combined with loose interpretation of the Commerce and Tax-and-Spend clauses, metastasized through the 20th century into today's rather grabby American legal system. This has given rise to the idea that you haven't just got a right to your own labor, but that you have a right to personally profit from other people's capital, at their expense, even if you contribute nothing of value to the enterprise.)

Something I really like about Caplan is how concise he manages to be while making absolutely cutting points:

The government starts with the blatantly illegal goal of banning “bigots from expressing their opinions in a way that abuses or offends their co-workers.” Then instead of respecting those limits, the government’s judicial branch gets creative: “Murder’s illegal? Fine, we’ll hire hitmen instead.” By affirming liability, it dangles piles of cash in front of potential plaintiffs to terrorize employers into banning what the government, legally, must allow.

Precedent on what counts as "government action" is remarkably unhelpful in understanding these things. Georgia v. McCollum (1992) is all about how a defendant in voir dire acts as an organ of the state when they select their own jury, and therefore are forbidden from considering race when seeking to exclude potential jurors. This, even though in virtually every other regard, as Justice O'Connor then noted, "our [past] decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions." Whether any particular action counts as "government action" proscribed by the Fourteenth Amendment does not seem to depend at all on who actually took the action, in other words, but only on how the Court wants the case to come out.

So I think Caplan is dead on, here--the Civil Rights movement basically shredded any kind of principled interpretation of the Fourteenth Amendment, in pursuit of socially-engineered results.

Context

Soriek naraburns 1yr ago

Basically, the Constitution is a document of enumerated powers, meaning the federal government can't--in theory--do anything the Constitution doesn't explicitly allow it to do. But the judicially-crafted breadth of the Fourteenth Amendment, combined with loose interpretation of the Commerce and Tax-and-Spend clauses, metastasized through the 20th century into today's rather grabby American legal system.

This is kind of a nitpick aside from the article, which was interesting, but the constitution solely as a document of enumerated powers has never been the singular interpretation in the US, and didn't end with the Fourteenth Amendment (which is not to say that things haven't changed since then). The Doctrine of Implied Powers, based on the Constitution's Necessary and Proper Clause and the General Welfare Clause, has been with us since the founding and let the government do some pretty seismic stuff it was explicitly written that it could do, like create a national bank and establish the middle third of the country.

Ironically, during the Lochner Era at least, the Fourteenth Amendment was used to argue not for but against economic redistribution-y measures like minimum wage and maximum working hour laws on the basis that they violated freedom of contract, which was protected (in their opinion) by the 14th's Due Process Clause. When the Government started passing federal versions of those laws in the 30s they were awarding themselves regulatory power against the contemporary precedent set by the 14th.

Walterodim Only equals speak the truth, that’s my thought on’t naraburns 1yr ago

Georgia v. McCollum (1992) is all about how a defendant in voir dire acts as an organ of the state when they select their own jury, and therefore are forbidden from considering race when seeking to exclude potential jurors.

Every time that I think I've read the most tortured, dishonest bullshit from a legal expert seeking to arrive at whatever conclusion that they wanted based on their personal feelings, someone calls to attention an even more ridiculous example. This decision really is breathtaking in its utter mendacity and inclination to oppress people that are on trial. I knew that racial discrimination in voir dire had become illegal at some point, but I didn't realize that it was by declaring that the person who is under attack by the state is conscripted into being an arm of the state themselves! The reasoning for granting the state standing is also remarkable:

(d) The State has third-party standing to challenge a defendant's discriminatory use of peremptory challenges, since it suffers a concrete injury when the fairness and the integrity of its own judicial process is undermined; since, as the representative of all its citizens, it has a close relation to potential jurors; and since the barriers to suit by an excluded juror are daunting. See Powers, 499 U. S., at 411, 413, 414. Pp. 55-56.

Frankly, if this constitutes a basis for standing, I have to say that any claims that a litigant ever lacks standing are bullshit, always and forever. If a defendant selecting a jury that is more racially favorable to them constitutes a "concrete injury" to the state on the basis that the state represents all citizens, this is a fully general argument for state standing in every possible example I can think of. I'm sure some brilliant legal mind can explain why that's definitely not the case and my blunt response is that they're simply lying.

ymeskhout Walterodim 1yr ago · Edited 1yr ago

Normal people routinely reason backwards from their preferred conclusion, and judges are no different. Unfortunately their word is often final, so tough shit. This has been and remains the status quo, and wordy legal analysis can often just be a figleaf facade to obfuscate the real reasons a judge wants to rule a certain way. For example much of 19th century UK law used the generic 'he' pronoun but Parliament passed the Interpretation Act in 1850 that said "Words importing the Masculine Gender shall be deemed and taken to include Females." [So does that mean when the law said that "Every Man shall ... be entitled to be registered as a Voter" meant women could vote? LOL of course not. Ok, so that does that mean a female tavern owner could not be convicted of harboring a prostitute because the law only said 'he'? LOL of course not. They can do what they want because fuck you that's why.

Sometimes judges get caught in an inescapable vice they just can't get out, like the time the 9th Circuit was forced to rule that second-degree murder was not a crime of violence.

[OK, it's slightly more complicated than that. The technical explanation is that under the federal sentencing guidelines, you would get extra time imposed if one of your prior convictions was a "crime of violence", which was defined as a crime that either was "murder" (generically defined) or at least had an element of use of force. The problem is that under some state law, you could be convicted of "felony murder", which does not require use of force, and also does not meet the "generic" definition of "murder".]

NewCharlesInCharge Walterodim 1yr ago

My state's supreme court has held that invocation of racist stereotypes, such as suggesting that a person is looking for a windfall, or that a person's employer may not be an unbiased witness, is always grounds for a hearing for a new trial, and at the hearing the burden is on the other party to prove that race was not a factor in the jury's decision.

There are no bounds on this, so if the matter in question happens to be whether a Chinese man peed in your Coke, he'll always be entitled to a new trial based on descriptions of his actual behavior.

https://www.courts.wa.gov/opinions/pdf/976724.pdf

Henderson moved for a new trial or additur on the ground that the repeated appeals to racial bias affected the verdict, yet the trial court did not even grant an evidentiary hearing on that motion. The court instead stated it could not “require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones.” 1 Clerk’s Papers (CP) at 180-81.

That reasoning gets it exactly backward. In ruling on a motion for a new civil trial, “[t]he ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.” State v. Berhe, 193 Wn.2d 657, 665, 444 P.3d 1172 (2019). A trial court must hold a hearing on a new trial motion when the proponent makes a prima facie showing that this objective observer could view race as a factor in the verdict, regardless of whether intentional misconduct has been shown or the court believes there is another explanation. At that hearing, the party seeking to preserve the verdict bears the burden to prove that race was not a factor.

...

During closing arguments, Thompson’s counsel alluded to racist stereotypes about Black women as untrustworthy and motivated by the desire to acquire an unearned financial windfall. Defense counsel argued that Henderson’s injuries were minimal and intimated that the sole reason she had proceeded to trial was that she saw the collision as an opportunity for financial gain. Id. at 1195 (“And it seems pretty evident that the reason we’re going through this exercise is because the ask is for three and a half million dollars.”), 1198 (arguing that Henderson did not inform one of her doctors about the collision soon enough “because $3.5 million hadn’t coalesced in her mind yet”). Defense counsel’s argument that Henderson was exaggerating or fabricating her injuries appealed to these negative and false stereotypes about Black women being untrustworthy, lazy, deceptive, and greedy.

...defense counsel argued that Henderson’s chiropractor was likely to lie for her because they had more than just a doctor-patient relationship, implying that hiring her to work in his office demonstrated impropriety in their relationship. This strategy could open the door to speculation that plays directly on prejudice or biases about race and sexuality.

Deleted by author

The-WideningGyre Esperanza 1yr ago

Minor note: for me "to go Dutch" means to split the bill, not to avoid paying. I guess in the sense of date your phrasing fits too.

Esperanza The-WideningGyre 1yr ago

I am guessing you are quite tall and like bicycling and ice skating on canals. In many parts of the world, the expectation is that one party pays for entertainment. Only in the Netherlands, and among horrible people elsewhere, is there an expectation that a bill will be split. This seems weird, but it possibly dates back to gift culture. I know that staying for dinner is a horrible faux pas in the Netherlands while it is utterly expected in other places. Many cultures make a huge effort to be hospitable to others, with crazy gift cultures, always bringing food to an event, always buying rounds of drinks, and other patterns like this. The Dutch really are out of step with most places, especially outside Hajnal line North Western Europe.

The_Nybbler Does not have a yacht Esperanza 1yr ago

Bill splitting is quite common in the US (and the phrase "going dutch" obsolete).

Job NewCharlesInCharge 1yr ago

Wew that decision is something

[B]lack

we vacated convictions after a prosecutor repeatedly invoked negative

stereotypes about Latinx people

These people of Law are getting scary.

zeke5123 naraburns 1yr ago

Civil rights wasn’t just a change in the 14th amendment. It basically was a new constitution. So many items (either explicitly or implicitly) under the CRA blatantly contradict the constitution (eg freedom of association, contract clause, 14th amendment as you note). CRA also dramatically expanded the scope of the executive and heavily reduced the scope of the State’s powers.

I can only think of the NRA and possibly the 17th amendment which committed such violence to the constitutional scheme.

Gdanning zeke5123 1yr ago

It is a little unclear to me why the Commerce Clause does not give Congress the power to bar a practice that made it very difficult for millions of people to engage in interstate travel.

It is also unclear to me how the Civil Rights Act violates "freedom of association, contract clause, 14th amendment." Freedom of association is not a right listed in the Constitution. The Court has recognized a right to associate for the purpose of speaking, and a right of intimate association (eg, the right to raise children and the right to live with relatives), but a freestanding "freedom of association" would be as much an invention as the right to abortion. The contract clause simply forbids states from the common practice of passing laws eliminating the debts of particular individuals. It is not a right to enter into any contract you want. Finally, how does the 14th Amendment give anyone a right to engage in discrimination, racial or otherwise?

gattsuru Gdanning 1yr ago · Edited 1yr ago

I'd point to Gustafson, but it's kinda in a weird limbo right now.

Finally, how does the 14th Amendment give anyone a right to engage in discrimination, racial or otherwise?

As a trivial matter, the 14th Amendment is how the 1st Amendment is incorporated, and I'll point again to the hat. And I use that case rather than a t-shirt because nobody talks about Dawson to the point where you can play Google Golf with it.

You've focused on 'discrimination' in the simple contract or refuse-to-contract sense, and to some extent that case is at least more arguable (though I'd quibble whether the modern contract clause jurisprudence is so clear an honest trim-back from Lochner invention), but under modern CRA jurisprudence that's no longer the boundaries and often not even the central example of modern-day discrimination. For employment discrimination purposes, allowing employees to play the wrong radio stations or tape up the wrong posters is part of the mainstream definition and just as clearly discrimination. So, for that matter post-Bostock, have the bounds of covered frameworks expanded: I emphasize Demkovich for throwing away the ministerial exception (overturned on appeal), but it was not overturned or even seriously questioned on the hostile work environment claim, separate from any employment action claims, despite the court finding explicitly that : "The conduct plaintiff alleges here is classic tortious harassment under Meritor Savings Bank, Harris, Ellerth, Faragher, and countless other cases: his supervisor allegedly subjected him to a campaign of verbal abuse based on his sex, sexual orientation, and disabilities, ultimately interfering with his job performance and mental and physical health."

This may have at one point been limited to actual conduct or conduct-enough-speech to have evaded normal First Amendment jurisprudence (the original hostile work environment in Meritor was serial rape, and Faragher v Boca Raton was handling a case with "unwanted touching" and threats of employment actions when it noted that it was not trying to produce a general civility code), but Faragher was 1998, and Reeves v. C.H. Robinson was 2010, and the law has not slowed. We have a civility code, and the extent employees may want to operate the same conventions independently is interesting but does little to evade the constitutional questions when there are routine actions by the EEOC.

SubstantialFrivolity I'm not even supposed to be here today Gdanning 1yr ago

Freedom of association is not a right listed in the Constitution.

It doesn't have to be. This sort of reasoning is literally why we have the 10th amendment, so that someone can't go "well the right isn't enumerated in the Constitution so the government doesn't have to respect it".

Gdanning SubstantialFrivolity 1yr ago

Nevertheless, it is incumbent upon OP to make an argument, not merely an assertion, re the why broad "freedom of association" is one of those rights. After all, OP said that the law "blatantly contradict[s]" freedom of association.

It is not on OP. The Constitution is an enumeration of powers for an otherwise-powerless government, not a listing of rights which one would not otherwise have. The burden of proof is on you to show why people would not have this right under the constitutional framework, not the other way around.

zeke5123 SubstantialFrivolity 1yr ago

Also, the analysis under the tenth amendment heavily supports freedom of association. Going back to English common law, there was zero idea that you were forced to rent or hire a particular person. The exception was common carrier. Freedom of association is deeply rooted in our tradition

Yes, if OP claims that freedom of association is a right listed in the Constitution, it is indeed on OP to show that it is a right listed in the Constitution. The claim that something is not within the enumerated powers of the government is a completely different claim than that same something is forbidden. Lots of laws are within the powers of the government, yet are not permitted because they violate rights. An obvious example: racial discrimination in hiring postal workers was within the enumerated powers in 1860, and it still is today; however, today it is forbidden by the Fourteenth Amendment.

-4

Jiro Gdanning 1yr ago

Because by that standard, anything affects interstate travel.

Of course, the clause had already been interpreted that way anyway.

Gdanning Jiro 1yr ago

Yes, it has been interpreted very broadly. But I don't see why you think "by that standard, anything affects interstate travel." The outlawed practices seem awfully directly affecting interstate commerce to me.

-7

If "interstate commerce" means "a person goes to another state and engages in commerce", then all commerce is interstate commerce except a couple of rare cases where you only have commerce with one or two pre-vetted people whose location you know. Otherwise it's impossible to keep out of state customers out of your store

ArjinFerman Tinfoil Gigachad Jiro 1yr ago

It's much more fun then that. Interstate commerce means a person planted crops on their own property for their own consumption, because by doing so they have not bought these crops on the market, thus affecting interstate prices.

SubstantialFrivolity I'm not even supposed to be here today ArjinFerman 1yr ago

Yeah. Good old Wickard v Filburn, aka the dumbest fucking legal decision ever handed down. It truly makes my blood boil to think that the supreme court betrayed us to such an extent.

KMC Gdanning 1yr ago

Yes it is.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since the power to force association is not delegated to the United States, and it is not prohibited by the States, it's right there in black and white that Freedom of Association is reserved to the States, or to the people, as the case may be.

If you want to claim otherwise, then you need to point to specifically enumerated powers.

Gdanning KMC 1yr ago

Where?

I did. The Commerce Clause, augmented as are all enumerated powers, by the Necessary and Proper Clause. And, of course, the CRA does not "force association." It prevents discrimination when engaged in commerce. No one is forcing anyone to put black people on their bowling team.

-8

Soriek KMC 1yr ago

Isn't this his point? Since the constitution doesn't guarantee a freedom of association then you don't have that right, AKA there's no reason the states can't infringe upon it, which is what they did in quite extreme fashion during segregation - if I as an individual wanted to go to McDonalds with my friend of a different race I was deprived of that right and legally barred from doing so. By ending the State's ability to prevent people of different races from voluntarily comingling, surely the CRA represented one of our history's more dramatic expansions in freedom of association.

-3

Walterodim Only equals speak the truth, that’s my thought on’t Soriek 1yr ago

Since the constitution doesn't guarantee a freedom of association then you don't have that right, AKA there's no reason the states can't infringe upon it

Obviously, I'd have to be comically stupid to believe that the Ninth Amendment is anything other than a dead letter, but it's worth a mention anyway:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The founding principle of American governments was not intended to be that anything not explicitly called out falls under state power.

Soriek Walterodim 1yr ago

IANAL but my understanding is that the Ninth Amendment has never been held to confer substantive rights (which seems to be what the linked wiki page affirms as well). If it is supposed to do that, and Americans have always had a right to freedom of association, then surely segregation was always unconstitutional and the CRA just reestablished the right to association that we were supposed to have.

SubstantialFrivolity I'm not even supposed to be here today Soriek 1yr ago

IANAL but my understanding is that the Ninth Amendment has never been held to confer substantive rights

Of course not. The ninth amendment assumes that people already have those rights and is affirming them. It doesn't confer rights, but the rights still exist according to the constitution.

Soriek SubstantialFrivolity 1yr ago

Works for me, but doesn't change that the argument that freedom of association is listed in the constitution is incorrect, hence why the states were capable of infringing upon that right during segregation.

As best as I can tell, the first time the Courts ruled that we did have a right to freedom of association it was NAACP vs. Alabama, which is much my point above - that the Civil Rights Era was a legal expansion of freedom of association rather than a contraction of it.

Bleep zeke5123 1yr ago · Edited 1yr ago

the Civil War destroyed the Constitutional order and nothing else even remotely approaches it

edit: I think there are ~5 different "Republics," each marking a destruction of the previous Constitutional order: Articles of Confederation, Federal Constitution, Civil-War era, New Deal Era, and Civil Rights Era. Most of the individual court decisions and legislation weren't the causes of the discord, but the victory laps.

The_Nybbler Does not have a yacht zeke5123 1yr ago

The Administrative Procedures Act is up there too.

Thoroughlygruntled The_Nybbler 1yr ago

The APA seems bad out of context, but it was actually an attempt by Congress to rein in the executive, which under FDR and Truman was doing all of the same stuff anyway under baldly asserted "inherent powers" of the President as stand-in for king. Before the APA, general injunctive relief against federal agencies literally did not exist.

toadworrier Thoroughlygruntled 1yr ago

And this is why the focus on the Civil Rights Act as a new constitution is a bit skewed.

Elites have been attacking the US constitution ever since the Alien and Sedition Acts. More importantly, by the Progressive Era there was a well-established ideology that was hostile to the way classical liberal constitutionalism interfered with energetic technocratic government action. This is why FDR wanted to pack the court.

There's a certain amount of stupid in the CRA, but the 1960's had the virtue that people were returning to the idea that individual had inherent rights that ought to be vindicated against the higher "wisdom" of the powers that be. America's strong 1st Amendment jurisprudence emerges from the same era.

zeke5123 The_Nybbler 1yr ago

That’s a good choice. Though perhaps much like @naraburns mentioned with the CRA many (though not all) of the flaws of the APA derived from court decisions (eg matters of law should consistent with the APA be reviewed de novo).

It is good SCOTUS (and lower courts) seem to be putting back teeth into the courts’ role in the APA (eg major questions doctrine, effectively neutering Auer, putting more teeth into HBO type analysis of an agency’s determination). I will be celebrating when (if?) Chevron is overturned.

naraburns nihil supernum zeke5123 1yr ago

Not Marbury v. Madison? (Kidding, kind of.)

But relatedly, the Civil Rights Act was just the legislative prong; I would argue that the Warren court overall did far greater violence to American liberty than any specific act of Congress. In particular, "one man one vote" via Baker v. Carr (1962) and Reynolds v. Sims (1964) stripped "protected minority" status from rural Americans, in effect ensuring that the United States would eventually follow the same trajectory as every other urban-centered empire in history. When your cities are packed with low-agency wards of the state who can vote themselves unlimited quantities of free grain, keeping the lights on becomes an increasingly fraught undertaking.

Skibboleth naraburns 1yr ago

When your cities are packed with low-agency wards of the state who can vote themselves unlimited quantities of free grain

This seems at odds with the reality that in the US urban poverty is lower than rural poverty and that in developed countries cities are economic engines that subsidize infrastructure and welfare for rural areas.

Gdanning naraburns 1yr ago

stripped "protected minority" status from rural Americans

That is one way to put it. But in 1960, the twenty-eighth district of the CA Senate, made up of Alpine, Mono, and Inyo Counties, had a total population of fifteen thousand people. The thirty-eighth district, Los Angeles County, had a population over 6,000,000. Is there some other "protected minority" that is given veto power over state legislation?

naraburns nihil supernum Gdanning 1yr ago

Is there some other "protected minority" that is given veto power over state legislation?

That's Fourteenth Amendment jurisprudence in a nutshell.

Then I assume you have an example? Because the case law on redistricting certainly doesn't say that.

The case law on redistricting studiously avoids recognizing that the problem with "one man, one vote" is exactly the problem the Framers recognized when reaching the Great Compromise. Urban and rural populations have different interests. Majority rule is mob rule. Protecting minority interests by creating a bicameral legislature with separate apportionment rules, instituting the electoral college, implementing an independent judiciary, etc. are all moves aimed at preventing "one man, one vote" from being the law of the land.

Then I assume you have an example?

Every single "strict scrutiny" case overturning state legislation grounded in a "suspect classification" is a concrete and often explicit example of a protected minority being given veto power over state legislation.

curious_straight_ca naraburns 1yr ago

[half-baked] Technically, avoiding "one man one vote" as a way to prevent tyranny only works when you combine two or more different "weightings" of the voter base. If some people have more than one vote and others have less than one, all you've done is reduced the number of people necessary for a mob-majority rule, not increased it! So combining some 'one person one vote' bodies with some rural-weighted bodies is a better way of accomplishing a generic anti-tyranny goal than having every vote be rural-weighted.

Then it sounds like you don't have an example, because that is nothing like what was happening in CA. You are advocating for giving rural voters veto power over ALL legislation, not the tiny minority of legislation that intentionally discriminates against them, as is the case re the equal protection cases to which you refer.

Then it sounds like you don't have an example

I just gave you all the examples. I can't tell whether you're being deliberately obtuse in hopes of setting some rhetorical trap, or whether I have mistakenly attributed to you a substantial knowledge of the law that you don't actually possess. (For some reason I thought you were a lawyer, but now I'm thinking I must be mistaken about that. If so, my apologies!)

You are advocating for giving rural voters veto power over ALL legislation, not the tiny minority of legislation that intentionally discriminates against them

What reason would they have to use a veto power on anything else?

Or maybe more importantly--why are you advocating for rural voters to never have a veto over ANY legislation, even legislation that intentionally discriminates against them? Because that is clearly the result of "one man, one vote."

More comments

Marbury was technically wrong so you aren’t wrong but probably the o LT real workable outcome.

And agreed, Warren court was terrible for constitutional design. Really the entire period from 1930-1980 was terrible in fucking up the constitutional order for which we now are paying a price.

Soriek zeke5123 1yr ago

Fwiw quite a few of the founders seemed to think judicial review was going to be a thing; Hamilton famously argued for it in the Federalist Papers. It was already practiced in State and Federal Courts and of course for a long time in English Common Law, so I don't know if it should be counted that highly as a legal revolution, at least as measured by how far it departed from founding intent and the historical context.

zeke5123 Soriek 1yr ago

The difference was at least in England is that the judiciary was an appendage of the King’s authority whereas under the US scheme the judicial authority was both separate but co-equal.

So the idea that the SCOTUS could command the executive to do an action was at least questionable under the constitutional scheme.

Now, I think you need a scheme to ensure the Fox isn’t guarding the henhouse so as a prudential matter I don’t dislike Marbury. But I would like it a lot more if it functioned to say “Executive can’t do X” instead of “Executive must do X” in the civil application by the executive (criminality is a whole different ball of wax)

The logic of Marbury is this:

The Constitution says that the Constitution is the supreme law of the land.
Therefore, if a state law conflicts with the Constitution, the Constitution must prevail.
Whether a law conflicts with the Constitution depends on how the Constitution is interpreted.
The interpretation of law, including the Constitution, is the judicial power. (As opposed to the executive power or the legislative power).
The Constitution give the judicial power to the Supreme Court, and to such inferior courts as Congress may establish.
Therefore, if the Supreme Court interprets the Constitution to forbid what a state law does (eg, exempting religious schools from funding available to all other schools), then the state law is invalid.

Why is that incorrect? Note, btw, that all three branches get a crack at tossing a federal law if they think it is unconstitutional: Congress can refuse to enact it; the President can veto it, or perhaps refuse to enforce it; and the Supreme Court can declare it unconstitutional. For state laws, it is effectively four branches. All of that enhances limited government: A law cannot be enacted unless all branches agree that it is constitutional.

Gdanning Esperanza 1yr ago

I think your argument fails on point 3. Interpreting the Constitution is not just a power of the judiciary. The President swears to uphold the Constitution, so presumably interprets it (as he does not get to ask the Supreme Court about every action). So does the legislature, in much the same way.

I think you meant point 4.
As I noted, of course the President and Congress can each opine that a statute is unconstitutional: "Note, btw, that all three branches get a crack at tossing a federal law if they think it is unconstitutional"

Remember, the Judicial Power only covers "cases" not over-ruling statutes or setting policy:

? Yes, but if there is a case -- ie, the state charges someone with a crime for advocating socialism -- then, courts have jurisdiction over it.

but that is going from a "case" to a general rule, which is beyond the old interpretation of judicial power - the authority to resolve a dispute.

Yes, a SCOTUS decision is technically only binding on the parties thereto. But, once a decision is issued, then lower courts are bound to follow that precedent in each specific case. So, this is really not a meaningful distinction.

Finally, your interpretation enables the Supreme Court to overrule the other two branches, which does not seem like a very good design.

As I noted, the system is designed such that a law cannot take effect unless ALL branches agree that it is constitutional. A court's power to weigh in is a feature, not a bug.

And, this is what Federalist Paper no 78 says:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Roe is a good example

Maybe, but why focus only on the abuses of one branch? What about the many laws that have been passed by Congress and state legislatures that blatantly violate individual rights? If the courts have no say, then those rights are meaningless. It is as if the First Amendment were amended to say, "Congress shall make no law abridging [long list of rights], unless Congress thinks it is ok."

And, I would note that when autocrats in countries from Hungary to Zimbabwe and everywhere in between want to take power, the first thing they do is neuter the independence of courts, either by packing them or otherwise.

-1

judicial independence means that the liberal elite can not be replaced,

That's an odd argument, given that after Warren retired, Republican presidents nominated the next 10 justices.

But, again, you haven't really addressed the problem of giving the legislature and executive carte blanche to ignore the Bill of Rights, as well as other individual rights protected by the Constitution.

When your cities are packed with low-agency wards of the state who can vote themselves unlimited quantities of free grain, keeping the lights on becomes an increasingly fraught undertaking.

One thing that I find particularly striking about this is that it seems like basically everyone that's interested in politics is well aware of just how low-agency and incompetent said wards of the state are, with the observable discussion around their voting looking (to me) like an example of the celebration parallax. On the one hand, these voters are so incompetent that it's important that they receive "ballot assistance" to fill out ballots and have them delivered by political operatives, they are people that are completely incapable of doing something as simple as walking over to a polling station and checking boxes, or requesting an absentee ballot themselves, yet on the other hand their votes are important to collect for the sake of Our Democracy. When turnout among the mentally incompetent is high, this is a good thing, and any efforts to shift in the direction of restoration of the secret ballot, or at least requiring that the voter demonstrate that they're a legal voter is regarded as "voter suppression".

Our system hasn't been distorted to allow compiling ballots from mentally incompetent wards of the state, but it's a good thing that it has been.

hydroacetylene Walterodim 1yr ago

That celebration is entirely due to partisan valence, though- these same people think that Republican precincts not having enough ballot paper is no big deal.

What is this place?

Why are you called The Motte?

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