A Conversation on the Constitution: Judicial Interpretation

Piers Morgan Interviews Supreme Court Justice Scalia – Part 2

Piers Morgan Interviews Supreme Court Justice Scalia – Part 1

Uncommon Knowledge with Justice Antonin Scalia

Justice Scalia on killing terrorists with drones

Source: Justice Scalia at Rhodes: ‘Don’t mess with the Constitution’

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Unexpected kind word for Parliament House protesters @GreenpeaceNZ @RusselNorman @NZGreens @greencatherine

The Greenpeace vandals who trespassed at Parliament, climbing up to put signs down the front in flagrant disregard of the most ample possible options for peaceful protest right outside at least had the integrity to plead guilty. That shows some sort of fidelity to law and an acknowledgement that what they did was a criminal offence.

John Rawls makes the point that the purpose of civil disobedience is not to impose your will upon others but through your protest to implore them to reconsider their position and change the law or policy you are disputing.

Rawls argues that civil disobedience is never covert or secretive; it is only ever committed in public, openly, and with fair notice to legal authorities. Openness and publicity, even at the cost of having one’s protest frustrated, offers ways for the protesters to show their willingness to deal fairly with authorities. Rawls argues:

  • for a public, non-violent, conscientious yet political act contrary to law being done (usually) with the aim of bringing about a change in the law or policies of the government;
  • that appeals to the sense of justice of the majority;
  • which may be direct or indirect;
  • within the bounds of fidelity to the law; and
  • whose protesters are willing to accept punishment. Although civil disobedience involves breaking the law, it is for moral rather than selfish reasons; the willingness to accept arrest is proof of the integrity of the act.

Rawls argues, and too many forget, that civil disobedience and dissent more generally contribute to the democratic exchange of ideas by forcing the champions of dominant opinion to defend their views.

Legitimate non-violent direct action are publicity stunts to gain attention and provoke debate within the democratic framework, where we resolve our differences by trying to persuade each other and convince the electorate.

Too many acts of non-violent direct action aim to impose their will on others rather than peaceful protests designed to bring about democratic change in the laws or policies of the incumbent government. That ‘might does not make right’ is fundamental to the rule of law. As United States Supreme Court Justice Antonin Scalia said

The virtue of a democratic system [with a constitutionally guaranteed right to free speech] is that it readily enables the people, over time, to be persuaded that what they took for granted is not so and to change their laws accordingly..

Both sides passionately but respectfully attempt to persuade their fellow citizens to accept their views. Win or lose, advocates for today’s losing causes can continued pressing their cases, secure in the knowledge that an electoral loss today can be negated by a later electoral win, which is democracy in action as Justice Kennedy explains:

…a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices…

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.

The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature.

Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

John Rawls’ view that fidelity to law and democratic change through trying to persuade each other is at the heart of civil disobedience reflects the difference between the liberal and the left-wing on democracy and social change as Jonathan Chait observed this week:

Liberals treat political rights as sacrosanct. The left treats social and economic justice as sacrosanct. The liberal vision of political rights requires being neutral about substance.

To the left, this neutrality is a mere guise for maintaining existing privilege; debates about “rights” can only be resolved by defining which side represents the privileged class and which side represents the oppressed…

Liberals believe that social justice can be advanced without giving up democratic rights and norms. The ends of social justice do not justify any and all means.

The role of the courts in end of life choices for the terminally ill

Lindsay Mitchell has a nice summary of the latest developments on an application to the High Court of New Zealand by a terminally ill patient for a declaration that her assisted suicide would not be unlawful and subject to the criminal law. This application currently before the court is specific to that individual and is crafted to claim that it will set no general precedent.

I’m with Justice Scalia when he argues that fundamental issues such as these should be decided by parliaments. As he says regarding general social change:

The virtue of a democratic system [with a constitutionally guaranteed right to free speech] is that it readily enables the people, over time, to be persuaded that what they took for granted is not so and to change their laws accordingly.

The amount of social change in the mid to late 20th century has been stunning. Yes, assisted dying years a passionate issue and some people are impatient, but again I believe Justice Scalia is right when he said:

We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

That importance of a fair defeat at the ballot box and in Parliament is important both to when and if a bill on end of life choice is passed, and to how quickly support opposition to that bill will be mobilised before such a bill even is put into the Parliamentary ballot of private member’s bills.

Nothing stirs up the impassioned (and most other people as well) more than depriving them of their right to support or oppose what is important to them through political campaigns and at an election. The losing side, we all end up on the losing side at one time or another, are much more likely to accept an outcome if they had their say and simply lost the vote at the election or in Parliament.

A decision by the High Court authorising assisted dying in some way does not offer the peace of a fair defeat where the votes are added up where your vote counted as much as mine and one side or the other lost as must always be in a democracy. That’s how majority rule works.

The last bill before the New Zealand Parliament to allow a death with dignity through an assisted suicide for the terminally ill was in 2003 and it failed by three votes: 60 votes to 57 votes.

It is not the role of the courts to hurry up the marshalling of those extra few votes to change the law to judicial action and dispensation. Again, when Scalia dissented on a parental rights case:

I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people

As Justice Scalia explains, the purpose of the law is to slow the impassioned majority down, not speeding it up:

Judges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will.

Their most significant roles, in our system, are to protect the individual criminal defendant against the occasional excesses of that popular will, and to preserve the checks and balances within our constitutional system that are precisely designed to inhibit swift and complete accomplishment of that popular will.

Those are tasks which, properly performed, may earn widespread respect and admiration in the long run, but — almost by definition — never in the particular case.

The intervention in a court to grant that right before Parliament is willing to act will only mobilise opposition to any future private member’s bill because they have been denied the right to oppose it through normal democratic means. What are those normal democratic means? Scalia explains when discussing the right to an abortion:

The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.

Assisted suicide has had popular support for many decades in New Zealand. The reason political parties do not act is those who are against assisted suicide are passionately against it and will change their vote because of such a bill. Those who are for assisted suicide are unlikely to change their vote if a bill is not passed by Parliament.

For these reasons regarding strong passionate minority opposition and weak majority support, the Labour Party’s new leader pressured a member of his caucus to withdraw a private member’s bill on end of life choice.

Similarly, the Green Party showed equal political cowardice in this matter. They don’t regard a death with dignity to be a priority for them, despite their alleged social liberalism and a willingness to champion the right to abortion in the most recent general election in 2014, which is a socially contentious issue.

The reason is a private member’s bill on abortion in New Zealand won’t get anywhere because the current compromise works – a point to which I shall return. A private member’s bill on end of life choice sponsored by a Green MP would attract too much political flak for the Green Party to handle.

The law has long acted to prevent, by force if necessary, suicide – including suicide by refusing to take appropriate measures necessary to preserve one’s life after the point at which life become unbearable. Justice Scalia argued that:

I believe in liberal democracy, which is a democracy that worries about the tyranny of the majority, but it is the majority itself that must draw the lines.

Whether the patient’s wishes to be honoured in this area is left to elected representatives to legislate. Justice Scalia asks

Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause.

What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection – what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution.

Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.

The biggest threat to an End of Life Choice bill passing the New Zealand Parliament is judicial intervention in this charged social issue that will only mobilises the opponents of the very right the applicants to the court seek. Scalia again this time on the risks of the courts moving in advance of the popular will, and thereby poisoning the democratic process:

Leaving this matter to the political process is not only legally correct, it is pragmatically so. That alone… can produce compromises satisfying a sufficient mass of the electorate that this deeply felt issue will cease distorting the remainder of our democratic process.

As an example of the importance of democratic compromises in securing the votes in Parliament, there is a voluntary euthanasia bill currently before the Scottish Parliament. It has been stuck in committee for two years because it not only promises end of life choice, it also grants a right of euthanasia to those with progressive degenerative diseases.

By overreaching to progressive degenerative diseases, this Bill in the Scottish Parliament is bogged down because euthanasia as distinct from a death with dignity is a step too far from many members of Parliament willing to support end of life choice for the terminally ill such as provided for in the House of Lords Private Member’s Bill on end of life choice.

Any private member’s bill that does pass the New Zealand Parliament on end of life choice will be riddled with compromises and will have a genuine concern to prevent abuse and guard against questionable decisions made when judgements of the terminally ill is clouded in some way. No court in a single judgement can provide all those details and compromises.

The law attracts more than its share of reformers wanting to use the courts and judge-made law for political purposes. If you want to reform the world, do what we ordinary people have to do: change your vote, write to an MP, protest, donate to or even join a political party, or run for parliament.

The great strength of democracy is a small group of concerned and thoughtful citizens can band together and change things by mounting single issue campaigns or joining a political party and running for office and winning elections or influencing who wins.

Indeed, it is that very strength of democracy – small groups of concerned citizens banding together  – is what is holding up legislating on an end of life choice. It is not that minorities are powerless and individuals are voiceless. Exactly the opposite.

Many people have passionate opinions for and against an End of Life Choice Bill. These opinions are taken into account by members of Parliament in fine detail depending on how voters will vote at the next election.

What can be undemocratic about members of Parliament paying attention to how a wide range of ordinary members of the community might vote if they disappoint them.

The key safeguard of minorities against the majority is their ability to block vote. Yes, those in the majority will be annoyed at the power of the minority to slow down the passage of a End of Life Choices Bill.

Yet on some other matter passionate to them those currently in the majority will one day or another end up in a minority. The rotation of power is common in democracies, and the worst rise to the top.

It is wise to design constitutional safeguards to minimise the damage done when those crazies to the right or left of you get their chance in office, as they will sooner or later rather than focus on the powers you and those that currently agree with you should have in your few days in which you fleetingly have a majority.

Too many policies and ideas of the one political party or another assume that they are the face of the future, rather than just another political party that will hold power as often as not and always for an uncertain time.

New Zealand Parliamentary elections are always close because of proportional representation. This makes reality of ending up in the minority again very quickly in a few years very real.

Yesterday’s majority of the vote sooner or later and often sooner than they expect will break off into different minorities on the next big issue of the day.

These newly formed minorities will use that same ability to band together as a minority to block vote to protect what they think is important and advance agendas they think are to be wider benefit despite the opinion of the current majority to the contrary. All reforms start as a minority viewpoint.

You can’t complain about democracy not working because it’s working precisely as it should: parliamentarians paying attention to a great number of people from all walks of life vote in light of how they as members of Parliament voted on specific issues that are important to them.

In a democracy we resolve our differences by trying to persuade each other and elections

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Justice Thomas as an unlikely hero for the marijuana decriminalisation movement – updated

The decriminalisation of marijuana possession by American states doesn’t really matter that much because it is still illegal under Federal law. Marijuana markets moved into the open in the states that decriminalised it because the federal authorities have chosen not to enforce their laws against these traders.

Justice Clarence Thomas is a radical view of the interstate commerce clause. This clause of the US Constitution at the height of the new deal was reinterpreted to allow Congress to regulate both interstate commerce and intrastate markets that affected interstate commerce.

The current interpretation of this clause supported by everyone on the US Supreme Court but Thomas is Congress can regulate the possession of marijuana because this affects interstate commerce. Justice Scalia explains:

…the Commerce Clause permits congressional regulation of three categories:

(1) the channels of interstate commerce;

(2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and

(3) activities that "substantially affect" interstate commerce.

As …the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could … undercut" its regulation of interstate commerce.

… This is not a power that threatens to obliterate the line between "what is truly national and what is truly local.

Justice Thomas rejects this view and wants to return to the original meaning of the interstate commerce clause:

Respondent’s local cultivation and consumption of marijuana is not "Commerce … among the several States."

Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value.

In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana

and

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits.

and further:

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.

This makes a mockery of Madison’s assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

In closing, Thomas said:

The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill.

Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens.

The adoption of the view of Thomas could not be more unlikely. Most federal regulation in the United States is based on linking it to the power of the Congress to regulate interstate commerce and foreign commerce. Thomas once noted that:

[w]hen asked at oral argument if there were any limits to the Commerce Clause, the Government was at a loss for words

The decriminalisation of marijuana in the United States will have to be based on more and more states choosing to decriminalise in the hope that the Federal Government does not enforce its rather savage criminal laws on drugs in their state. That’s is what seems to be happening. Whether that will still happen when a Republican wins the White House in 2016 remains to be seen.

Three American States have even passed hopelessly unconstitutional right to try laws. These laws  purport to allow the residents try experimental drugs that have not yet received approval of the Federal level by the FDA.

Even under the narrow interpretation of federal powers by Justice Thomas, these laws are unconstitutional. These laws nonetheless have social value because they are push the boundaries of the current political sense consensus.

This  evaluation applies to marijuana decriminalisation laws too.  They test the  current boundaries and can create the possibility of social change through democratic action.

Many who want a strong central government forget that the social agendas of the crazies to the left and right of them will also be implemented all in good time at the national level as well. Power rotates in any democracy so with enough time the meddlesome preferences of most sides of politics will be legislated into law so that everyone ends up been annoyed and over-regulated and more than a few end up before the courts and even in prison.

A wiser course in constitutional design is to give the parliament as much powers as you might wish those wreckers  and crazies that make up your political opponents to have when they come to office, as they surely must in six or nine years time. Even the British Labour Party took an interest in devolution and an assembly for London after 15 years of Maggie Thatcher, good and hard.

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