Bilski: business as usual [LWN.net]

Bilski: business as usual

Posted Jul 4, 2010 4:35 UTC (Sun) by paulmfoster (guest, #17313)
In reply to: Bilski: business as usual by giraffedata
Parent article: Bilski: business as usual

Study the history of law, and you will find that, I believe around the early part of the 20th century, law professors came up with a doctrine that current cases may be decided by relying on the rulings in prior cases. See the definitions of "stare decisis" versus "originalism". Under originalism, the primary factor is the text and intent of the law as originally written. Also see the Constitution as a "living document", which is the view of those who are not "originalists". Under non-originalist interpretation, the meaning of the Constitution can change depending on the conditions in society. Rather than the constitution meaning what it meant when the Founders wrote it.

And there absolutely are people who are more than willing to have the Supreme Court make law. Up until the early 70s, there was no federal law regarding abortion. Congress was unwilling to pass such a law, considering the divided opinion on the subject among the populace. In desperation, the case Roe V Wade was brought before the Supreme Court in an attempt to have the matter decided. The court decided that, based on a presumed right to "privacy" not mentioned in the Constitution, abortion should be allowed. Pro-abortion people were more than happy to have the Supreme Court decide the matter. Even though it vastly overstepped the court's mission to do so. When people cannot get laws passed they want, they are willing to have the Supreme Court make such laws out of whole cloth, as they did in Roe V Wade.

In 2008, the people of California voted by a large margin to bar homosexual marriage with Proposition 8. The results were clear. Yet since then, many groups have attempted to bring challenges, including in court, to the law, because they disagreed with it. They are more than willing to have a court strike down a law which was voted in by the majority of the people in the state.

I'm not passing judgment on the issues themselves. I'm merely pointing out that when people can't get their way under the law, they're willing to get it some other way, including having a court make law or strike down a properly constituted law.

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Bilski: business as usual

Posted Jul 4, 2010 20:43 UTC (Sun) by giraffedata (guest, #1954) [Link] (2 responses)

I didn't realize stare decisis was that new. However, cursory research tells me "early twentieth century" might be off by a hundred years. I know I've read lines of cases going back to the mid-1800s that seem at least heavily influenced by prior decisions, particularly of higher courts.

And I definitely agree that there are large numbers of people who are happy if a court ignores precedent when it goes their way. But I believe if you asked those same people if, as a general rule, they would rather live under a government that is required to decide legal disputes the same way it did the last time or one that treats every case as one of first impression, the majority would favor the former.

On the other issue of the courts just making up law where the legislative branch has declined to, I think people think the same way -- on a particular issue, they'll say the court should rule in their favor regardless of any legal principle, but if asked for a general rule would say they don't want courts legislating.

But there are really very few cases where there is consensus that the court changed the law. In most the cases where people complain of that, a reasonable person (well enough informed) could argue the court merely interpreted an existing law, consistent with prior decisions.

In the California constitutional amendment banning same sex marriage, I think there are very few people who think the courts should just ignore the law and use their own conscience. Lots of people may have got behind the technical arguments lawyers found that the amendment should not be effective because they didn't like the amendment, but that's different.

You seem to be introducing a separate issue here too: majoritarianism. Believing that the law of the land is not majority rule is a whole separate thing from believing courts should make up laws. Arguments against Prop 8 at the California Supreme Court said the majority vote in that election wasn't enough to impose that law on everybody, not that it was valid law but just a bad one. And arguments in the pending federal court case are based on federal law, which it is well established is not affected by any vote among Californians.

BTW, what you call a "large margin" is called by opponents of Prop 8 a "small margin." It was 52.5% to 47.5% or 1.1 to 1. They point out that's not enough to amend the constitutions of most states or the US.

Bilski: business as usual

Posted Jul 4, 2010 21:41 UTC (Sun) by paulmfoster (guest, #17313) [Link] (1 responses)

Conceded: the date of stare decisis. I'm not a lawyer, and I was going by memory. Also conceded, the margin on Prop 8 in California. I don't live there anymore, so I don't follow the issue closely.

However, the issue you raise about majoritarianism in the Prop 8 case is beside the point. A bias against majoritarianism (or straight democracy) is one of the reasons the founders built the government the way they did. But the point I made is that opponents of Prop 8 are more than happy to see a court strike down the law (duly passed) *regardless* of the reason. Majoritarianism enters in here because California allows initiatives like this on its ballots, and considers the results of such votes as "law". Fine and good. But once the vote is cast, you can't then say that it's a bad law. The people voted, the matter is settled. If you want to change the law, then change people's minds about the issue and have another vote. Going to court to strike down a law legally passed, just because you disagree with it, is essentially asking the court to make law. It would really be the same thing if the California legislature passed such a law and opponents went to court to strike it down. Either way, the law (passed by the legislature or passed by ballot initiative) is the law. But people who disagree will always be happy to have the court strike down laws they don't like. Or make laws where legislatures fail to.

I can't speak to whether people, when questioned, would prefer courts not "make" law. Maybe a majority do believe that. But certainly a sizable minority *act* in a way that's contrary to that belief.

Bilski: business as usual

Posted Jul 5, 2010 16:23 UTC (Mon) by giraffedata (guest, #1954) [Link]

I brought up majoritarianism because I thought you were implying that a majority vote should control in spite of any law that says it doesn't. Now I think you just didn't hear my point that in Prop 8 court cases, people are merely asking courts to determine whether a majority vote was sufficient in this case. They aren't asking the courts to say the voters were wrong, merely that the procedures they followed are insufficient under the law to ban same sex marriage. If you're for same sex marriage and you believe the law is on your side, you'd be crazy not to go through the process to enforce that law.

In the state case, one of the arguments was that to ban same sex marriage requires a "revision" of the Constitution, whereas a simple majority vote is sufficient only for an "amendment." The Constitution uses those words and gives no help in telling the difference, so it made sense for the Supreme Court to consider whether a law had really been passed.

In the federal case, the claim is that the ban conflicts with another law (US Constitution) - an existing law with higher priority, so that there is in fact no ban. If nobody sues, though, the ban takes effect even if according to our system of laws, it shouldn't. That's a fair reason to sue.

Extending this to the broader discussion here, I believe most cases where people complain of courts making law and people using them for that purpose are just like this. A closer look at the actual legal process reveals a valid dispute and a fair path to resolution.