I wish I had said that!

[Kevin R]

The following is from a WSJ editorial by one of my favorite legal scholars, the irrepressible Prof. Lino Graglia. His timely topic is the insidious trend of judge-made law and the ever expanding meaning of the 14th Amendment (or at least the first section).


Death by 'Due Process'
Activist courts are defying, not enforcing, the Constitution.

BY LINO A. GRAGLIA
Tuesday, May 24, 2005 12:01 a.m. EDT

The battles in Congress over the appointment of even lower court federal judges reveal a recognition that federal judges are now, to a large extent, our real lawmakers. Proposals to amend the Constitution to remove lifetime tenure for Supreme Court justices, or to require that rulings of unconstitutionality be by more than a majority (5-4) vote, do not address the source of the problem. The Constitution is very difficult to amend--probably the most difficult of any supposedly democratic government. If opponents of rule by judges secure the political power to obtain an amendment, it should be one that addresses the problem at its source, which is that contemporary constitutional law has very little to do with the Constitution.

Judge-made constitutional law is the product of judicial review--the power of judges to disallow policy choices made by other officials of government, supposedly on the ground that they are prohibited by the Constitution. Thomas Jefferson warned that judges, always eager to expand their own jurisdiction, would "twist and shape" the Constitution "as an artist shapes a ball of wax." This is exactly what has happened.

The Constitution is a very short document, easily printed on a dozen pages. The Framers wisely meant to preclude very few policy choices that legislators, at least as committed to American principles of government as judges, would have occasion to make.

The essential irrelevance of the Constitution to contemporary constitutional law should be clear enough from the fact that the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law; and nearly all of them purport to be based on a single constitutional provision, the 14th Amendment--in fact, on only four words in one sentence of the Amendment, "due process" and "equal protection." The 14th Amendment has to a large extent become a second constitution, replacing the original.

It does not require jurisprudential sophistication to realize that the justices do not decide controversial issues of social policy by studying those four words. No question of interpretation is involved in any of the court's controversial constitutional rulings, because there is nothing to interpret. The states did not lose the power to regulate abortion in 1973 in Roe v. Wade because Justice Harry Blackmun discovered in the due process clause of the 14th Amendment, adopted in 1868, the purported basis of the decision, something no one noticed before. The problem is that the Supreme Court justices have made the due process and equal protection clauses empty vessels into which they can pour any meaning. This converts the clauses into simple transferences of policy-making power from elected legislators to the justices, authorizing a court majority to remove any policy issue from the ordinary political process and assign it to themselves for decision. This fundamentally changes the system of government created by the Constitution

The basic principles of the Constitution are representative democracy, federalism and the separation of powers, which places all lawmaking power in an elected legislature with the judiciary merely applying the law to individual cases. Undemocratic and centralized lawmaking by the judiciary is the antithesis of the constitutional system.

The only justification for permitting judges to invalidate a policy choice made in the ordinary political process is that the choice is clearly prohibited by the Constitution--"clearly," because in a democracy the judgment of elected legislators should prevail in cases of doubt. Judicially enforced constitutionalism raises the issue, as Jefferson also pointed out, of rule of the living by the dead. But our problem is not constitutionalism but judicial activism--the invalidation by judges of policy choices not clearly (and rarely even arguably) prohibited by the Constitution. We are being ruled not by the dead but by judges all too much alive.

Because most of the Supreme Court's activist rulings of unconstitutionality purport to be based on a 14th Amendment that it has deprived of specific meaning, the problem can be very largely solved by simply restoring the 14th Amendment to its original meaning, or by giving it any specific meaning. The 14th Amendment was written after the Civil War to provide a national guarantee of basic civil rights to blacks. If a constitutional amendment could be adopted reconfining the 14th Amendment to that purpose or, better still, expanding it to a general prohibition of all official racial discrimination, the Court's free-hand remaking of domestic social policy for the nation would largely come to an end. If the justices lost the ability to invalidate state law on the basis of their political preferences, their ability and willingness to invalidate federal law on this basis would likely also diminish.

Plato argued for government by philosopher-kings, but who could argue for a system of government by lawyer-kings? No one can argue openly that leaving the final decision on issues of basic social policy to majority vote of nine lawyers--unelected and life-tenured, making policy decisions for the nation as a whole from Washington, D.C.--is an improvement on the democratic federalist system created by the Constitution. Yet that is the form of government we now have.

The claim that the court's rulings of unconstitutionality are mandates of the Constitution, or anything more than policy preferences of a majority of the justices, is false. Rule by judges is in violation, not enforcement, of the Constitution. Ending it requires nothing more complex than insistence that the court's rulings of unconstitutionality should be based on the Constitution--which assigns "All legislative Power" to Congress--in fact as well as name.

Mr. Graglia is the A. Dalton Cross Professor of Law, University of Texas. This is adapted from "'A Country I Do Not Recognize': The Legal Assault on American Values" (Robert Bork, editor), to be published this fall by the Hoover Institution.

[Corlyss_D]

Interesting article, Kevin. I never heard of this guy.

You might be interested in this paper from which I got the stats that Werner took exception to last week.

http://www.nexusjournal.org/2002judicial/PilonRTP.htm

[Ralph]

I know Graglia. He's been publicly reprimanded for slurs against Hispanics at his school several times. He's quite a character at Con Law meetings during the annual national law school convention. I think he's near retirement.

[pizza]

R I G H T O N ! B Y D A V I D H O R O W I T Z

an academic lynching

WHY A VETERAN PROFESSOR OF LAW IS BEING
STRUNG UP FOR SAYING THE OBVIOUS

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

lino Graglia is a 67-year-old Sicilian-born American who was an attorney in the Eisenhower Justice Department and has been teaching constitutional law at the University of Texas in Austin for 33 years. A stiff-necked Catholic conservative -- some would say eccentric -- he passionately holds to a belief that some would call fundamentalist: that if representatives of the sovereign people choose to enact a law that is not contradicted by the actual text of the Constitution, then that law is constitutional. Period.

Last week, the president of his university, the chancellor and 51 of his law school colleagues denounced him. State legislators, including the chairman of the Hispanic Caucus, described him variously as a Klan supporter, a racist and "academic riff-raff." The Houston Chronicle condemned him as an "embarrassment" and the local NAACP and three student groups charged him with "racial harassment." Jesse Jackson urged 5,000 cheering campus demonstrators to boycott his classes and "turn him into a moral and social pariah."

Graglia's crime? As usual in these intellectual autos-da-fé, for telling an uncomfortable truth: that affirmative action is simply an attempt to conceal or wish away the unwelcome fact that blacks and Mexican-Americans are not academically competitive with whites and Asians. Graglia made the remarks in a speech to "Students for Equal Opportunity," a campus organization for whom he was the faculty advisor. The topic of the meeting was the Hopwood case, which recently ended affirmative action at the university.

Graglia had not come by those views recently. Twenty years ago he wrote a book called "Disaster by Decree: The Supreme Court Decisions on Race and the Schools," and is accustomed to describing affirmative action programs as a "fungus" and a "fraud." His latest remarks on the subject were almost tepid by comparison, leaving Graglia totally unprepared for the public burning that followed them.

The frenzy has been so strong that out of a faculty of more than 1,000 professors, only two have been willing to come forward to defend the character of a man who has taught for three decades alongside them and whose Dean, after reviewing his personal file, stated that there were no grounds for disciplinary action. Despite the NAACP's charges, the Dean added, "The record does not justify a charge that he discriminates against his students and others on the basis of race or ethnicity." Indeed, as the Houston Chronicle reported, "No one has offered any evidence that Graglia treats minority and white students differently."

What then provoked such a lynch mob atmosphere? In the original newspaper story about the speech, Graglia is quoted as saying that "blacks and Mexican-Americans can't compete academically with whites." While such a statement could be considered factual, if one looks at the figures, it also could be considered racist if taken to mean that such minorities by nature can't compete.

Alert to this nuance, the reporter asked Graglia what he thought caused the gap in performance on standardized tests. Graglia answered that he didn't know. The reporter pressed on. Did Graglia think the cause was "genetic or cultural?" Graglia said he thought it was cultural, and suggested that perhaps academically underachieving groups put less emphasis on academic achievement and did not necessarily consider academic failure "a disaster." Later, Graglia explained how, in his own Sicilian household as a child, academic achievement was given less emphasis than among many Jewish households he knew. Various studies seem to show "that blacks and Mexican-Americans spend much less time in school," he said. "They have a culture that seems not to encourage achievement. Failure is not looked upon with disgrace."

Similar points were made in last week's U.S. News & World Report story on the differing academic attainment of white and black students in the schools in Little Rock, Ark., and elsewhere across the country. "In some cases ... it is black parents themselves who steer their children away from honors classes or don't fight to keep them enrolled," wrote the U.S. News reporter. "Black students say there is also peer pressure not to take honors classes."

So Graglia is not alone in his beliefs. Why then is this distinguished professor of law now a pariah in his own community? Because the atmosphere of intimidation on college campuses around the issue of affirmative action is as thick today as the anti-communist paranoia of the McCarthy era. Graglia is being strung up for saying an obvious but discomforting truth: that blacks, Hispanics and other minorities designated for affirmative action preferences are not competing intellectually on standardized tests.

Now buried under the Everest of invective, Graglia also said something more in the text of his remarks before the "Students for Equal Opportunity":

"Racial preferences are the root cause of virtually all the major problems plaguing American campuses today. They result in a student body with two groups, identifiable by race, essentially in different academic ballparks. An inability to compete successfully in the game being played necessarily results in demands that the game be changed, and thus are born demands for black and Hispanic studies and 'multiculturalism.' Little is more humiliating to the racially preferred than open discussion of the conditions of their admission. Concealment and deception are therefore always essential elements of racial preference programs -- and thus is born insistence on political correctness and the need [to suppress] 'hate speech.'"

Sept. 22, 1997


http://www.salon.com/sept97/columnists/ ... 70922.html

[Cosima__J]

Thanks Pizza for setting the record straight. Sounds like yet another example of the "politically correct" thought police busy at work. He's being burned at the stake for daring to express uncomfortable truths. It's very disturbing that so many members of academia today will not tolerate an honest discussion of ideas.

[Corlyss_D]

Yet another example of a conservative getting ripped by "colleagues" and "peers" for doing something that a liberal would be criticized for only by people of common sense. Call victims of 9/11 little Eichmanns and the entire academic establishment rallies to the defense on freedom of speech and academic freedom and tenure blah blah blah. State that blacks and hispanics are not academically competitive, or that women may not be genetically predisposed to science and math, things that can be proven statistically, and the entire academic community denounces the speaker as a bigot, racist, sexist, scum unworthy of consideration.

At some point I'd think the pattern would be obvious to anyone not locked in a hermitically sealed ivory tower. I'd think they would be shamed into self assessment. But no, they go right on playing to type.

[MaestroDJS]

Thanks Pizza for setting the record straight. Sounds like yet another example of the "politically correct" thought police busy at work. He's being burned at the stake for daring to express uncomfortable truths. It's very disturbing that so many members of academia today will not tolerate an honest discussion of ideas.

Yet another reason I try to get at least some of my news from comedians. Jesters can tell the truth -- politically correct or not -- and get away with it. Besides, on days when I don't know whether to laugh or cry, it tips the balance toward mirth.

Such as:

The Onion: Investigators Blame Stupidity In Area Death

WHEATLEY, AR—Although reckless driving and minor driver impairment were cited as additional factors, police investigators ruled pure, unadulterated stupidity as the primary cause in the death of an unlicensed motorist involved in a single-car accident Sunday.

Just try to say something like that on the "normal" news programs!

Dave

David Stybr, Engineer and Composer: It's Left Brain vs. Right Brain: best 2 falls out of 3
http://members.SibeliusMusic.com/Stybr

Coordinator, Classical Music SIG (Special Interest Group) of American Mensa

String Quintet No. 2 in B Minor -- http://www.SibeliusMusic.com/cgi-bin/sh ... reid=53172

[Ralph]

A "lynching?" Of a tenured professor who has many conservatives in his camp? Just as he and anyone else has the right to condemn "liberals," he can be a target too and the article posted above omits what should have been easily available to the author: his actual comments about Hispanic law students.

And as I mentioned befoe, I know him. I've talked with and debated him. Even the author above recognizes he's "eccentric" which in this case is euphemism spread wide.

[Ralph]

Thanks Pizza for setting the record straight. Sounds like yet another example of the "politically correct" thought police busy at work. He's being burned at the stake for daring to express uncomfortable truths. It's very disturbing that so many members of academia today will not tolerate an honest discussion of ideas.

*****

"Burned at the stake?" He hasn't lost a dime, been sued, denied any academic assignment. And if you read his responses he clearly relishes the attention and the debate which he thinks advances his often interesting and serious views, especially about the merits of affirmative action.

[pizza]

Thanks Pizza for setting the record straight. Sounds like yet another example of the "politically correct" thought police busy at work. He's being burned at the stake for daring to express uncomfortable truths. It's very disturbing that so many members of academia today will not tolerate an honest discussion of ideas.

*****

"Burned at the stake?" He hasn't lost a dime, been sued, denied any academic assignment. And if you read his responses he clearly relishes the attention and the debate which he thinks advances his often interesting and serious views, especially about the merits of affirmative action.

What's wrong with relishing the attention of serious debate? Do you think that's the same as relishing the vile slander that his views provoke from the liberal campus establishment and the liberal press that slurps it up and regurgitates it without question or thought?

Loss of money is nothing compared to loss of reputation by scandalous invective unsupported by facts. That's the modus operandi of liberal academia where their precious politically correct assumptions and ironclad rules of public discourse are challenged by those who refuse to be intimidated. Graglia and other academics who won't toe the party line continue to pay the price exacted by the liberal campus mafioso.

[pizza]

A "lynching?" Of a tenured professor who has many conservatives in his camp? Just as he and anyone else has the right to condemn "liberals," he can be a target too and the article posted above omits what should have been easily available to the author: his actual comments about Hispanic law students.

And as I mentioned befoe, I know him. I've talked with and debated him. Even the author above recognizes he's "eccentric" which in this case is euphemism spread wide.

Where are all the "conservatives" who rallied to his defense? Two out of a thousand or so?

And what is so terrible about his quoted comments about Black and Hispanic law students which you apparently missed in Horowitz' article? Have you proof that more Black and Hispanic families encourage academic participation than don't?

"The frenzy has been so strong that out of a faculty of more than 1,000 professors, only two have been willing to come forward to defend the character of a man who has taught for three decades alongside them and whose Dean, after reviewing his personal file, stated that there were no grounds for disciplinary action. Despite the NAACP's charges, the Dean added, "The record does not justify a charge that he discriminates against his students and others on the basis of race or ethnicity." Indeed, as the Houston Chronicle reported, "No one has offered any evidence that Graglia treats minority and white students differently."

"Graglia said he thought it was cultural, and suggested that perhaps academically underachieving groups put less emphasis on academic achievement and did not necessarily consider academic failure "a disaster." Later, Graglia explained how, in his own Sicilian household as a child, academic achievement was given less emphasis than among many Jewish households he knew. Various studies seem to show "that blacks and Mexican-Americans spend much less time in school," he said. "They have a culture that seems not to encourage achievement. Failure is not looked upon with disgrace."

These are not "eccentric" views. They are views that disturb the liberal mentality which assumes that every social experiment of the past generation or so should be continued in perpetuity whether useful or not.

[pizza]

• The Politically Incorrect Professor

Issues & Views
P.O. Box 467
New York, NY 10025

The Lie Is Winning
Scapegoating Lino Graglia
By Thomas Sowell

[Reprinted from Issues & Views Summer 1997]

The truth and the lie have clashed on the University of Texas campus at Austin--and the lie is winning. It all started when the Fifth Circuit court of Appeals declared unconstitutional the racial quotas used in admissions to the University of Texas law school. What then happened in Texas has been very similar to what has happened in California when racial quotas were ended: Minority student enrollment fell in some institutions and rose in others. The declines have provoked wildly indignant rhetoric in the media, while the rises have been ignored.

In California, for example, minority enrollment dropped at the University of California at Berkeley's law school and rose at the law school at the University of California at San Diego. In Texas, the proportion of black undergraduates at the University of Texas at Austin has declined, while the number at the University of Houston rose a hefty 15%.

There is no mystery behind this. Minority students were not denied a higher education, as some of the overheated rhetoric claimed. They simply redistributed themselves within the system, now going to institutions where they met the same standards as everyone else. They now have a much better chance of graduating like everyone else, instead of continuing to have a dropout rate that is double the national average.

Unlike many academics who are running around yelling that the sky was falling, law professor Lino Graglia at the University of Texas at Austin said that minority students should "enroll in the best educational institution for which they meet the ordinary admission criteria." He also did not buy the argument that statistical disparities in ethnic representation are proof of discrimination. Professor Graglia pointed out that different ethnic groups put different emphasis on education.

That is when the campus exploded. Thousands of demonstrators turned out to denounce Professor Graglia. Politicians called for his removal. The inevitable Jesse Jackson showed up to make the inevitable charge of racism. This is when the truth and the lie clashed--with the lie coming out ahead. Graglia's statement that different ethnic groups put different emphasis on education is not only true but commonplace among groups around the world.

Whether comparing the Chinese and the Malays in Malaysia, Sephardic and Ashkenazic Jews in Israel, Ibos and Hausa-Fulani in Nigeria, Germans and Slavs in the Hapsburg Empire, or numerous other groups in many other countries, huge differences in the amount and kind of education have been the rule--not the exception. Even when all the groups have had the same access to education, not all have seized the opportunity to the same degree or put the same effort into it.

No one with the slightest regard for facts can deny that this is true in the United States today. Even black and white liberals have expressed dismay that black children who try to do well in school are denounced by their peers for "acting white." Back during the immigrant era, Italian-American youngsters who tried to do well in school likewise risked getting beaten up by their peers. But because Professor Graglia recognized such facts, he is being denounced as a racist, and demonstrators are carrying signs saying, "Hey! Hey! Ho! Ho!, Graglia has go to go!"

What a pathetic spectacle to see demonstrators arguing at this juvenile level, stridently confident in their ignorance and denouncing a man who knows far more than most of them will ever know, who has far more honesty than those who are pandering to emotions. I have known Lino Graglia and followed his work for years, with great respect. Twenty-one years ago, he wrote the classic study of busing, "Disaster By Decree." Today, that disaster is so widely recognized that even within the civil rights organizations there is a growing opposition to the policy. Will it be another 21 years before the truth of what Graglia is saying about affirmative action finally breaks through the fog of emotions and lies?

--Thomas Sowell is an economist and author of many books, including Preferential Policies: An International Perspective (Morrow), Inside American Education: The Decline, The Deception, The Dogmas (Free Press/MacMillan) and The Vision of the Anointed (Basic Books).

http://www.issues-views.com/index.php/s ... ticle/2048

[Ralph]

A "lynching?" Of a tenured professor who has many conservatives in his camp? Just as he and anyone else has the right to condemn "liberals," he can be a target too and the article posted above omits what should have been easily available to the author: his actual comments about Hispanic law students.

And as I mentioned befoe, I know him. I've talked with and debated him. Even the author above recognizes he's "eccentric" which in this case is euphemism spread wide.

Where are all the "conservatives" who rallied to his defense? Two out of a thousand or so?

And what is so terrible about his quoted comments about Black and Hispanic law students which you apparently missed in Horowitz' article? Have you proof that more Black and Hispanic families encourage academic participation than don't?

"The frenzy has been so strong that out of a faculty of more than 1,000 professors, only two have been willing to come forward to defend the character of a man who has taught for three decades alongside them and whose Dean, after reviewing his personal file, stated that there were no grounds for disciplinary action. Despite the NAACP's charges, the Dean added, "The record does not justify a charge that he discriminates against his students and others on the basis of race or ethnicity." Indeed, as the Houston Chronicle reported, "No one has offered any evidence that Graglia treats minority and white students differently."

"Graglia said he thought it was cultural, and suggested that perhaps academically underachieving groups put less emphasis on academic achievement and did not necessarily consider academic failure "a disaster." Later, Graglia explained how, in his own Sicilian household as a child, academic achievement was given less emphasis than among many Jewish households he knew. Various studies seem to show "that blacks and Mexican-Americans spend much less time in school," he said. "They have a culture that seems not to encourage achievement. Failure is not looked upon with disgrace."

These are not "eccentric" views. They are views that disturb the liberal mentality which assumes that every social experiment of the past generation or so should be continued in perpetuity whether useful or not.

*****

Pizza,

Where did I say that I didn't concur with some of Graglia's views? And the Supreme Court in the pair of University of Michigan affirmative action cases essentially accepted not only Graglia's take but that of very many other constitutional law scholars and Civil Rights activists. I personally translated the Supreme Court decision with regard to Michigan's law school into a new, apparently for all intents and purposes, race-blind admissions process.

Why haven't conservatives rallied to Graglia's stand? Because - and this is a rare CMG instance where a member, me, actually knows a public figure - his eccentricity isn't his statements about affirmative action, it's his whole, long, well-known career with many episodes having nothing to do with national policy.

Just one example: it's well-known that he virtually obsesses in his Con Law class about a few New Deal cases dealing with MILK. Many of us cover these cases (me in a few minutes) but his treatment of them is legendary. And, yes, I personally know or have known people who took his course.

Forget the "poor, beleagured Lino" label, Pizza. This guy has more fun than most of us ever do.

[pizza]

A "lynching?" Of a tenured professor who has many conservatives in his camp? Just as he and anyone else has the right to condemn "liberals," he can be a target too and the article posted above omits what should have been easily available to the author: his actual comments about Hispanic law students.

And as I mentioned befoe, I know him. I've talked with and debated him. Even the author above recognizes he's "eccentric" which in this case is euphemism spread wide.

Where are all the "conservatives" who rallied to his defense? Two out of a thousand or so?

And what is so terrible about his quoted comments about Black and Hispanic law students which you apparently missed in Horowitz' article? Have you proof that more Black and Hispanic families encourage academic participation than don't?

"The frenzy has been so strong that out of a faculty of more than 1,000 professors, only two have been willing to come forward to defend the character of a man who has taught for three decades alongside them and whose Dean, after reviewing his personal file, stated that there were no grounds for disciplinary action. Despite the NAACP's charges, the Dean added, "The record does not justify a charge that he discriminates against his students and others on the basis of race or ethnicity." Indeed, as the Houston Chronicle reported, "No one has offered any evidence that Graglia treats minority and white students differently."

"Graglia said he thought it was cultural, and suggested that perhaps academically underachieving groups put less emphasis on academic achievement and did not necessarily consider academic failure "a disaster." Later, Graglia explained how, in his own Sicilian household as a child, academic achievement was given less emphasis than among many Jewish households he knew. Various studies seem to show "that blacks and Mexican-Americans spend much less time in school," he said. "They have a culture that seems not to encourage achievement. Failure is not looked upon with disgrace."

These are not "eccentric" views. They are views that disturb the liberal mentality which assumes that every social experiment of the past generation or so should be continued in perpetuity whether useful or not.

*****

Pizza,

Where did I say that I didn't concur with some of Graglia's views? And the Supreme Court in the pair of University of Michigan affirmative action cases essentially accepted not only Graglia's take but that of very many other constitutional law scholars and Civil Rights activists. I personally translated the Supreme Court decision with regard to Michigan's law school into a new, apparently for all intents and purposes, race-blind admissions process.

Why haven't conservatives rallied to Graglia's stand? Because - and this is a rare CMG instance where a member, me, actually knows a public figure - his eccentricity isn't his statements about affirmative action, it's his whole, long, well-known career with many episodes having nothing to do with national policy.

Just one example: it's well-known that he virtually obsesses in his Con Law class about a few New Deal cases dealing with MILK. Many of us cover these cases (me in a few minutes) but his treatment of them is legendary. And, yes, I personally know or have known people who took his course.

Forget the "poor, beleagured Lino" label, Pizza. This guy has more fun than most of us ever do.

There are Constitutional lawyers other than Graglia who believe the MILK cases (United States v. Carolene Products Co.) are worth "obsessing" over. The following short article describes Justice Stone's Footnote 4 as the pivotal point in what is considered one of the most important rulings in American judicial history.

"In 1937 the United States faced a constitutional crisis. A conservative majority on the Supreme Court had used its power of judicial review to strike down economic reform laws aimed at ameliorating the harshness of the Great Depression. President Franklin D. Roosevelt proposed a plan to add new justices to the Court, but Congress refused to go along with the so-called "court-packing" plan. Nonetheless, although Roosevelt lost the battle, he won the war. Within a year, retirements from the Court allowed him to name younger and more liberal justices.

In 1938, the old battle lines between economic reformers and conservative judges were rapidly disappearing. The Court declared that in regard to economic legislation, if Congress had the power to act in a particular area -- such as control of interstate commerce -- judges would not question the wisdom of the measure. But aside from this, a new agenda was rapidly crowding onto the Court's docket. If questions of economic rights had been the chief concern of the judiciary in the first part of the twentieth century, questions of individual rights and liberties would occupy the courts for the rest of the century.

The pivotal point in this transformation can be precisely identified, in what is considered the most important footnote in American judicial history. In an otherwise unremarkable case regarding federal regulation of milk content (United States v. Carolene Products Co.), Justice Harlan Fiske Stone announced that Congress had the power to regulate interstate commerce, and if it chose to set minimal standards for milk quality, that was the business of the legislative and not the judicial branch.

Immediately following this statement, however, Stone inserted his famous Footnote 4, which asserted that in noneconomic regulation cases, the Court might adopt a higher level of scrutiny. Footnote 4 has been the basis for the Supreme Court's subsequent judgments in cases protecting the integrity of the political process or involving so-called "suspect" classifications, such as race, creed, alienage, religion and gender. The Court has assumed an obligation to examine these statutes carefully, to ensure that individual liberties have not been abridged.

While there had been some cases involving individual liberties prior to this decision, the footnote is the demarcation point in the Court's shift to an emphasis on protecting civil rights and liberties, as well as the integrity of the democratic political process.

For further reading: Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (1956); Learned Hand, "Chief Justice Stone's Conception of the Judicial Function," 46 Columbia Law Review 696 (1946)."

http://usinfo.state.gov/usa/infousa/fac ... rac/34.htm

[Ralph]

I've read both the book and the article and Footnote 4 from Carolene Products is an old standby in my basic Con Law course. It's a quick but important prelude to Korematsu and Hiryabashi.

[jbuck919]

I've read both the book and the article and Footnote 4 from Carolene Products is an old standby in my basic Con Law course. It's a quick but important prelude to Korematsu and Hiryabashi.

To the fact that those cases were brought at all, you mean. Holding the Supreme Court to a higher standard in considering overturning something more significant than milk standards is rather irrelevant if it ends up not doing the overturning in the more important cases.

To make two other comments regarding what has been said on the thread:

One problem with the almost always oversimplified issue of different average academic peformance by different groups is the tendentious substitution of "cannot" for "do not." I am surprised that Corlyss fell into that one.

As for the issue that started the thread, ultra-strict constructionists will always run into the problem that there is no way to determine to universal consensus exactly what "just" the written Constitution says; the letter of the Constitution must also be interpreted. I know that Ralph has treated constitutional interpretation to a fine T in previous threads, but thought it should be brought up here as part of the discussion since it was the original point and Ralph (doubtless without intending to-- ) deflected it with an ad hominem remark.

[pizza]

One problem with the almost always oversimplified issue of different average academic peformance by different groups is the tendentious substitution of "cannot" for "do not."

If one can but doesn't it may be far worse than if one can't. Regardless, it's a proper subject for discussion by academics with minority viewpoints without personal slurs.

[jbuck919]

If one can but doesn't it may be far worse than if one can't.

Precisely. Except that I have a funny feeling we don't mean at all the same thing.

[Corlyss_D]

I've read both the book and the article and Footnote 4 from Carolene Products is an old standby in my basic Con Law course. It's a quick but important prelude to Korematsu and Hiryabashi.

To the fact that those cases were brought at all, you mean. Holding the Supreme Court to a higher standard in considering overturning something more significant than milk standards is rather irrelevant if it ends up not doing the overturning in the more important cases.

Well, you can see right off that there ain't no such thing as an unimportant SCOTUS decision. Since John Marshall's day, they have had a habit of tucking earth-shattering precedents in decisions on seemingly frivoulous or mind-numbingly boring cases. That has been some of the complaints about the courts since the unpleasantness over the court packing. Check out that article I referred Kevin to for an insight into what has some of us upset. We're not unprincipled; we're frustrated. For all our sincerity in wanting to shake the court till their brains rattle, I for one simply do not see how we can unmake 70 years of legal and social trends.

One problem with the almost always oversimplified issue of different average academic peformance by different groups is the tendentious substitution of "cannot" for "do not." I am surprised that Corlyss fell into that one.

I try not to get between Kevin and Pizza on the one side and Ralph on the other in these debates over the constitution. All three of them know more about Con Law singly and collectively than I ever will. It was among my favorite classes in law school, and I never got below a 96 on the exams (which proves I knew something about it once), but I'm much more interested in the politics of court decisions than the decisions themselves. What was the question?

ultra-strict constructionists

Trying not to say "ultra extremist," John?

will always run into the problem that there is no way to determine to universal consensus exactly what "just" the written Constitution says

Ah, yes. The eternal conundrum. As far as SCOTUS is concerned, it says what they says it says, period. Too damn bad the only resort from that is a constitutional amendment. The public has come to look on that as rarer than a day in June.

[jbuck919]

Ah, yes. The eternal conundrum. As far as SCOTUS is concerned, it says what they says it says, period. Too damn bad the only resort from that is a constitutional amendment. The public has come to look on that as rarer than a day in June.

If you mean a constitutional amendment to eliminate judicial review, that would just send the matter of constitutional interpretation back to the legislature, which (a) doesn't want the job and (b) is less (you might say even less) competent to handle it than the Supreme Court. They would either make a complete shred of it so that we had no more of a written constitution than the U.K., or they would be so paralyzed by having to measure everything they did against that document that they would would never get anything done (even by current standards). The problem would be propagated out to the state legislatures.

In New York, I have known the legislature to pass laws they knew to be unconstitutional (read: just plain wrong) because they were under a lot of political pressure and they knew the state courts would just strike them down.

[Corlyss_D]

If you mean a constitutional amendment to eliminate judicial review,

No, I didn't mean that. There have been plenty of opportunities to smack down SCOTUS if the American public didn't consider SCOTUS decisions to be the last word from the High Priests of our Civic Religion.

that would just send the matter of constitutional interpretation back to the legislature, which (a) doesn't want the job and (b) is less (you might say even less) competent to handle it than the Supreme Court.

Don't go there, John. In terms of the written words in the constitution, the legislature is the most qualified branch to deal with political issues that frequently end up in the courts instead. Much as you dislike it, that is the way things are and the way they were intended to be by the FFs. The problem IMO is that we no longer have a government of delegated powers since SCOTUS collapsed in the face of FDR's court packing threat. SCOTUS pretty much told Congress "as long as your legislation makes a case under one of the delegated powers, we will let it constitutional muster unless it's an egregious abuse of the power." The one I can think of off hand is the banning of guns within so many feet of a school that SCOTUS struck down a few years ago.

In New York, I have known the legislature to pass laws they knew to be unconstitutional

It's not just a local problem. It happens everywhere anytime there's an emotional issue that gets the public spun up. A representative sample within recent memory? The Patriot Act. The Terry Schiavo idiocy. Congress then gets to play this game that they passed a law to satisfy the public while knowing full well that the courts will strike it down. It's a shameful game. All three branches are responsible for interpreting the Constitution. Indeed just as you and I, they all took an oath to uphold the constitution. That IMO don't mean, we do something we know to be clearly unconstitutional so we don't have to bear the heat for being deliberate.

(read: just plain wrong)

I can't stress too strongly that it's not the job of the courts to arbitrate moral issues for society and decide in favor of what you think is the obviously "enlightened" moral choice, which of course is precisely what the fundamentalist Christians try to do when they try to force the courts to defend what they perceive to be the obvious moral choice. The job of the courts is to interpret the law.

[Ralph]

One problem with the almost always oversimplified issue of different average academic peformance by different groups is the tendentious substitution of "cannot" for "do not."

If one can but doesn't it may be far worse than if one can't. Regardless, it's a proper subject for discussion by academics with minority viewpoints without personal slurs.

*****

Agreed.

[Kevin R]

Ah yes, "discrete and insular minorities." That is one pernicious footnote.

[Kevin R]

As for the issue that started the thread, ultra-strict constructionists

JB,

This general school has nothing to do with strict construction. Ralph posted an article by an individual who made the same mistake. The correct term is "originalism" or "textualism." And if you dig into the philosophy you will discover that it is the only satisfactory way of interpreting statutes and constitutional questions.

[Kevin R]

Don't go there, John. In terms of the written words in the constitution, the legislature is the most qualified branch to deal with political issues that frequently end up in the courts instead. Much as you dislike it, that is the way things are and the way they were intended to be by the FFs.

Cor,

YES! Why is it that people can't seem to comprehend that simple truth?

[Corlyss_D]

Cor,

YES! Why is it that people can't seem to comprehend that simple truth?

Because they don't like representative democracy unless they are in the majority and when they aren't in the majority, they want some 3rd party to settle the issue authoritatively for them. It's not a matter of dimwittedness. It's worse than that. It's whining.

[Ralph]

As for the issue that started the thread, ultra-strict constructionists

JB,

This general school has nothing to do with strict construction. Ralph posted an article by an individual who made the same mistake. The correct term is "originalism" or "textualism." And if you dig into the philosophy you will discover that it is the only satisfactory way of interpreting statutes and constitutional questions.

*****Wow, I'm been pursuing an unsatisfactory way for decades. I should withdraw all my writings.

[Ralph]

Don't go there, John. In terms of the written words in the constitution, the legislature is the most qualified branch to deal with political issues that frequently end up in the courts instead. Much as you dislike it, that is the way things are and the way they were intended to be by the FFs.

Cor,

YES! Why is it that people can't seem to comprehend that simple truth?

*****

Cause just maybe it ain't a "simple truth?"

[Kevin R]

Don't go there, John. In terms of the written words in the constitution, the legislature is the most qualified branch to deal with political issues that frequently end up in the courts instead. Much as you dislike it, that is the way things are and the way they were intended to be by the FFs.

Cor,

YES! Why is it that people can't seem to comprehend that simple truth?

*****

Cause just maybe it ain't a "simple truth?"

Ralph,

It was to the Founders. "In republican government, the legislative authority necessarily predominates."

Madison, Federalist 51.

You know I can't go more than a few days without quoting from the "Papers"

[Corlyss_D]

I should withdraw all my writings.

Oh, don't go all that trouble. Just correct 'em.

[Ralph]

Ah, yes. The eternal conundrum. As far as SCOTUS is concerned, it says what they says it says, period. Too damn bad the only resort from that is a constitutional amendment. The public has come to look on that as rarer than a day in June.

If you mean a constitutional amendment to eliminate judicial review, that would just send the matter of constitutional interpretation back to the legislature, which (a) doesn't want the job and (b) is less (you might say even less) competent to handle it than the Supreme Court. They would either make a complete shred of it so that we had no more of a written constitution than the U.K., or they would be so paralyzed by having to measure everything they did against that document that they would would never get anything done (even by current standards). The problem would be propagated out to the state legislatures.

In New York, I have known the legislature to pass laws they knew to be unconstitutional (read: just plain wrong) because they were under a lot of political pressure and they knew the state courts would just strike them down.

*****

That happens in many states. In New York Gov. Cuomo, surely a brilliant lawyer as even his adversaries acknowledge, signed into law a bill granting certain powers to the Village of Kiryas Joel, a 100% Hasidic village, that he acknowledged were probably unconstitutional. He said he was leaving it to the courts and the Supreme Court twice obliged, striking two measures down.

[Ralph]

Don't go there, John. In terms of the written words in the constitution, the legislature is the most qualified branch to deal with political issues that frequently end up in the courts instead. Much as you dislike it, that is the way things are and the way they were intended to be by the FFs.

Cor,

YES! Why is it that people can't seem to comprehend that simple truth?

*****

Cause just maybe it ain't a "simple truth?"

Ralph,

It was to the Founders. "In republican government, the legislative authority necessarily predominates."

Madison, Federalist 51.

You know I can't go more than a few days without quoting from the "Papers"

*****

What does "predominate" mean? To determine WHAT laws are necessary. Certainly. To determine what laws are proper requires the judicial branch.

Judicial Review ain't going away.

[Ralph]

I should withdraw all my writings.

Oh, don't go all that trouble. Just correct 'em.

*****

I don't think so.

[Kevin R]

Don't go there, John. In terms of the written words in the constitution, the legislature is the most qualified branch to deal with political issues that frequently end up in the courts instead. Much as you dislike it, that is the way things are and the way they were intended to be by the FFs.

Cor,

YES! Why is it that people can't seem to comprehend that simple truth?

*****

Cause just maybe it ain't a "simple truth?"

Ralph,

It was to the Founders. "In republican government, the legislative authority necessarily predominates."

Madison, Federalist 51.

You know I can't go more than a few days without quoting from the "Papers"

*****

What does "predominate" mean? To determine WHAT laws are necessary. Certainly. To determine what laws are proper requires the judicial branch.

Judicial Review ain't going away.

Ralph,

It means the legislative branch (one sees this at the state level as well) was the most important under the Constitution, because it was nearest to the people. The people (through their representatives) should determine what laws are proper (within the meaning of a limited Constitution). This was the whole point of representative democracy. One of the most poetic passages in the Papers dealt with this exact point. In Federalist 22 Hamilton wrote that the “fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” (Emphasis is Hamilton's).

This bedrock principle of republican government has been turned on its head, where judges now decide political questions (you now those pesky ones like abortion and gay marriage that have absolutely no constitutional reference) that should be left up to voters. Hamilton (in "Lucius Crassus" No. 14) attempted to dismiss Jefferson's concerns about the tyranny of the judiciary by declaring it to be the "weakest" and "safest" of the three branches. How things have changed! The courts now have a power that would have astounded even Jefferson (look at Mapp, Miranda, Lawrence, Roe, Griswold, the list is lamentably long). And, unfortunately, it has proven to be one of the most dangerous to the liberties of the people.

But we're in compete agreement on judicial review. It shouldn't go away. It is far too important as a check on the legislature (which is why those in Philadelphia assumed its existence). The legislature often abuses its power, and the courts need to correct it (see US v. Lopez for example). However, we should not confuse judicial review with judicial activism. They are two completely different things.

[Ralph]

"Now?" Re-read De Tocqueville, a perceptive author whose writings are very familiar to you.

The "People" of 1787 excluded blacks, women, native Americans and a fair number of white ones. Senators were elected by state legislators. America has changed.

The Supreme Court provided the controlling definition of "proper" as in the Necessary and Proper Clause in McColloch v. Maryland. It's a legal concept imbedded in constitutional law and virtually no one disputes that it furthers the language and doctrine of Marbury v. Madison.

As to the constitutional basis of subjects such as abortion, one either accepts or rejects the arguments in favor or against finding that right. That debate isn't about to end.

Every constitutional issue is also a political matter. That the political process MIGHT have arrived at the same result as a Supreme Court decision doesn't rationalize an argument that the subject wasn't properly justiciable.

[Kevin R]

"Now?" Re-read De Tocqueville, a perceptive author whose writings are very familiar to you.

The "People" of 1787 excluded blacks, women, native Americans and a fair number of white ones. Senators were elected by state legislators. America has changed.

The Supreme Court provided the controlling definition of "proper" as in the Necessary and Proper Clause in McColloch v. Maryland. It's a legal concept imbedded in constitutional law and virtually no one disputes that it furthers the language and doctrine of Marbury v. Madison.

As to the constitutional basis of subjects such as abortion, one either accepts or rejects the arguments in favor or against finding that right. That debate isn't about to end.

Every constitutional issue is also a political matter. That the political process MIGHT have arrived at the same result as a Supreme Court decision doesn't rationalize an argument that the subject wasn't properly justiciable.

The original Constitution excluded no one. Most issues (like who could vote) were left up to the states. In New Jersey women voted for a time and blacks voted in numerous locations. Property qualifications (at the various state levels) had all but disappeared by 1790, with 90% of whites free to vote. How radical for the time.

The political process MUST never be subverted by the judiciary. As I've stated before, the people (where the Constitution is silent) must decide ALL political questions.