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Thursday, June 30, 2005

What the heck do people really want?

I think we all agree that the Supreme Court should not be in the business of making law.  We recognize, of course, that the line between interpreting and legislating is a fuzzy one; and we may disagree--vehemently--on when the Court is engaging in which.  (See Bush v. Gore, Roe v. Wade, Miranda, Goodridge, Lemon, Brown. . . .)  But as a general principle, we agree that the Court should not be in the business of substituting its own policy and philosophical preferences for the legislature's.

I, of course, made this argument recently in defense of the Court's opinion in Kelo.  Where the language and early history of a constitutional clause is subject to debate, the Supreme Court should defer to precedent/settled expectations, states, local governments, and the general democratic process--even if it results in horrible policy.

I'm also a little surprised at the reaction to the Court's decision to effectively uphold the principle that there is no "journalist-source privilege," at least not an unqualified one.  Almost everything I have seen has been critical of courts' analysis of this issue.

I may well agree as a policy matter that a journalist-source privilege is a good idea, at least in some cases.  But please show me where The People have passed a federal law on the issue.  For the Court to recognize such a privilege would be for it to make law based on a mixture of its own preferences and hints found in precedent and common law.  That's not a very good recipe for good or legitimate policy-making.

UPDATE:  Ethan Leib raises an excellent point, even as he rhetorically attacks me unnecessarily.  Sayeth Ethan:

I'm no evidence scholar, but I thought Fed R Evidence 501 specifically asked courts to fashion privileges. Now Federal Rules don't quite emerge from the Voice of the People. But then neither do most federal laws, whose democratic pedigree cannot be questioned from your worldview.

First, let me brush aside the attack.  I've never claimed that the democratic pedigree of a law--federal or otherwise--cannot be questioned.  Never.  Not once.  I am well aware of the major problems associated with lawmaking.  And the courts are a valued and necessary check on the excesses and limitations of such lawmaking.  But it does not follow that the courts should be in the business of lawmaking.  I would expect that a proponent of popular/populist lawmaking such as Ethan would embrace that view.

But Ethan's substantive point is very well taken and deserves discussion.  Discussion after the jump. . . .

Rule 501 states, in pertinent part:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

Undoubtedly, this rule grants the courts well more latitude to fashion policy in the sentencing context than in most other areas of the law.  Ethan's case is even stronger than he realizes.  The history of Rule 501 shows that Congress considered delineating specific privileges, thereby limiting courts' ability to expand or contract those privileges--but ultimately rejected such an approach in favor of the ultimate text of Rule 501.  This again suggests that judges have a great deal of latitude.

However, I don't think this grants courts the authority to create a new privilege--one apparently not found in the common law.  Courts are directed to adopt the privileges contained in the common law at the time of enactment and interpret those privileges in light of reason and experience.  As I read it, this means that courts have the authority to expand and contract established privileges according to reason and experience.  For instance, if courts recognize the need for additional limitations or expansions of the spousal privilege, they are empowered to modify the common law privilege accordingly.

But I do not read this to mean that courts may create what amount to entirely new privileges.

Nevertheless, Ethan's point is well taken, and this is not quite so clear-cut as I originally considered it.

Posted by Hillel Levin on June 30, 2005 at 11:41 AM in Law and Politics | Permalink


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Jeff: if you truly believe we can trust legislatures to guard against corporate overreaching, read this. (via Volokh). Relevant fact:

"One new board member [of the New London Development Corporation] was George Milne Jr, who also was a Pfizer vice-president. The new board president was Claire Gaudiani, President of Connecticut College, the wife of David Burnett, also a Pfizer vice-president."

Gasp! A close relationship between a corporation and the entity that exercised condemnation power, delegated from the legislature, on behalf of that corporation? Well, gosh, I thought the legislature was on guard to Protect the Constitutional Rights of their Sacred Constituents.

Posted by: Paul Gowder | Jul 1, 2005 4:28:05 PM

The term "entitlement" seems to my mind to convey a choice in the matter. They do not have a "choice", and therefore they are not so much entitled to uphold a constitutional right as much as they are mandated to do so. Where the constitution includes a right, legislators are NOT merely "free to act as they think the constitution requires" - their oath to uphold the constitution binds them to act as the constitution DOES require. What Kelo does is to grant them discretion where - absent an amendment - there can be none.

Posted by: Simon | Jul 1, 2005 1:50:12 PM


Congress has no entitlement to decide to uphold a constitutional right? Members of congress swear to uphold the constitution. What's confusing about that? A conflict between the court's decisions and legislative and executive officials' oaths arises only when the court says that the constitution says the government can't do something, and other government officials want to do it anyway and think the constitution does not prohibit it. But the court did not say the government can't do something in Kelo. So legislators are free to act as they think the constitution requires.

I don't personally have a view (yet) about whether Kelo correctly applies the public use language of the fifth amendment. You might be right about it.

Posted by: Jeff | Jul 1, 2005 1:17:04 PM

I again agree with you to this extent: that when a right isn't constitutionally protected, it "must be protected, if at all, through majoritarian processes". In fact, I think most originalists would enthusiastically join those remarks. The Constitution protects some rights, and does not protect other rights; not every right to which you are entitled must be teased from the text, and that's not inherently a bad thing. There are many things - the execution of a person who was a minor at the time of commission, for example - which are offensive, morally objectionable, grossly inadequate to their stated purpose, and so on, but which are none-the-less constitutional.

But where I disagree with you is that the Court can say, in the case of Kelo, that the power of emminent domain extends to anything other than public use.

In the case of Kelo, Hillal, for example, has contended that the court meant that even if the taking isn't for public use, the tax revenues anticipated from that taking will be used for public use. My response to that remains now, as it was then, that while this is, on its face, a reasonable argument - a pursuasive one, even, if this were a law we were talking about, rather than the Constitution - if this consitutes public use, anything constitutes public use.

I'm not going to defend Pelosi on this matter, or on any other; I have a little more sympathy for those who wrote this bill, but only insofar as they are attempting to "shoulder a burden" to which their oath to the constitution makes confusing. On the one hand, they have no entitlement to decide whether or not to uphold or defend this right. It's a constitutionally-protected right, the text of the contitution - absent an extremely creative reading thereof - explicitly guarantees it and therefore leaves no scope for legislative action. On the other hand, the court has attempted to eviscerate a Federally-protected right; does not the Federal legislature have an obligation to take action to counteract this mistake, lest states take their opportunity to take advantage of this tension between the Court's holdings and the Constitution's text, before Kelo is overruled, as it hopefully will be in the near future?

Posted by: Simon | Jul 1, 2005 10:00:00 AM

I don't disagree with anything you've said, and I haven't said I think the case was rightly decided. My point is just that constitutional rights are not the only kind of legal rights. When the court says the constitutution does not protect a right, that means it must be protected, if at all, through majoritarian processes. I don't pretend that that is not a different kind of protection.

The reason why it is important to point out that reading a right out of the constitution (or just noticing that it wasn't there in the first place, depending) is not eliminating the possibility of protecting the right is that people, including powerful ones (the Republican sponsors of the anti-Kelo bill; Nancy Pelosi) appear not to understand it. The anti-Kelo bill sponsors think the court assaulted property rights and that they have to fight back, when all they really have to do is shoulder the responsibility for the issue that the court says is theirs (or the states'). Pelosi thinks that shouldering the responsibility is defying the court's constitutional authority, even though putting the issue in political hands is exactly what the court did. So both sides are confused.

If a rule against using eminent domain for economic development is a desirable rule--and if, as appears, a legislative majority supports it--the right course of action is to simply get on with legislating the rule. Criticizing the court for deferring to majoritarian desires when one is oneself in the majority--as the congressional Republicans apparently are doing--is pointless. Criticizing the legislative majority for defying the court, when the court says it is deferring to legislative majorities--as Pelosi apparently is doing--is illogical.

Posted by: Jeff | Jul 1, 2005 1:30:15 AM

I thought you were wrong the last time you said that, and I still think you're wrong now.

The problem with your theory - that it's giving the legislature the discretion to invade a right or not - is true, but only as far as it goes. Therein lies the problem! What possible purpose would there be in the constitutional protection of a right, other than to specifically exclude from the legislature's discretion the ability to invade that right? If the court places back into the normal political arena the question of whether or not to invade a right, for all intents and purposes, it deletes that right from the Constitution. That is exactly what Justice Stevens did in Kelo, and for that precise reason, the case was wrongly decided.

And if the court really did say (which I don't think it does) that the constitution does not protect the right, I restate my previous desire to see Justice Stevens' version of the Constitution, because either his has some extra page, or mine is missing some.

Posted by: Simon | Jun 30, 2005 10:49:23 PM

Hillel: desperation?

Posted by: Paul Gowder | Jun 30, 2005 8:38:40 PM

More support for my impression (see my comment to the 'King George' post) that there is widespread (and bipartisan) misunderstanding of the effect of a Supreme Court ruling that someone's right to something is not protected by the constitution: NPR reports just now that Republicans in the House are advancing anti-Kelo legislation, saying indignantly that Kelo is an "assault" on property rights. Thus they fail to notice that the effect of the decision was to give them, a legislative majority, the power to protect the right in question themselves (assuming no federalism problem--not obviously a correct assumption, of course). This is especially peculiar--conservatives traditionally appreciate it when the court declines to define an individual right broadly and instead defers to legislative majorities. At the same time, Nancy Pelosi said, according to the NPR report, that the proposed legislation would violate separation of powers, invading the court's province. But the court did not say that protecting property owners from actions like New London's was unconstitutional. It said the constitution does not protect the right. That's different: it leaves legislatures, like the one Pelosi is a member of, to decide whether to protect the right (again, assuming no federalism problem with having Congress do it, rather than state and local governments).

Posted by: Jeff | Jun 30, 2005 8:21:32 PM

But Paul, why would you have any more faith in judges? Look throughout our history. It is only a snippet in time in which judges can be said to have been a force for positive social change. So even assuming there were an argument for their legitimacy (which I don't think is the case, excepting extreme nazi-like conditions), it isn't clear to me that it would even be desirable.

Posted by: Hillel Levin | Jun 30, 2005 7:09:21 PM

I wish I could have faith in the legislatures to honor peace, love, morality, and truth, instead of the fear, bigotry, greed and propaganda that they seem to be relying on instead.

Posted by: Paul Gowder | Jun 30, 2005 6:20:45 PM

But judges take an oath to the law. If they believe that peace, love, morality, and truth regularly trumps the clear understanding of the law, they should go into a different profession--one in which they can apply peace, love, morality, and truth directly to change the laws.Like...The legislature, for example. ;)

Posted by: Simon | Jun 30, 2005 5:43:17 PM

But judges take an oath to the law. If they believe that peace, love, morality, and truth regularly trumps the clear understanding of the law, they should go into a different profession--one in which they can apply peace, love, morality, and truth directly to change the laws.

By the way, if anyone should be outraged over Ratner, their outrage must be directed at the legislature, the school board, or the idiot enforcing the law; not to the judges who are applying it evenhandedly.

This is exactly what I meant by my post: judges can't win either way. They are damned no matter how they approach things. Sometimes, they are damned by the same folks! (That was the point of my Kelo posts.)

Posted by: Hillel Levin | Jun 30, 2005 3:15:31 PM

Caring about the law is important. But so is caring about justice, peace, love, morality, and truth.

Posted by: Paul Gowder | Jun 30, 2005 3:08:35 PM

Ratner is offensive, but no, it is not the judge's place to ignore that law. If the governor of the state wants to pardon the minor, that is within his power. If the people of that county and state want to toss the DA and or school board out on his/her/their ass for bringing that case, that it within their power. The records can be sealed because this was a minor (or possibly expunged if the same thing were to happen to an adult). The legislature can repeal the law while the case is being appealed ect...

In short there are processes by which our government and public can deal with a situation like that, short of a judge ignoring his duty to uphold even a ridiculous statute. I don't want the judges in this case to decide to ignore the law anymore or less than I want a judge to decide that he will ignore the First Amendment and jail someone because he finds their speech personally repugnant.

Neither should you if you care about the law.

Posted by: MJ | Jun 30, 2005 3:01:30 PM

And if the people are stupid and insecure enough to want a flag-burning law, they they deserve one.Or, as G.B. Shaw put it, "Democracy is a device that ensures we shall be governed no better than we deserve"; H.L. Mencken was more blunt - "Democracy is the theory that the common people know what they want and deserve to get it good and hard."

Posted by: Simon | Jun 30, 2005 2:59:30 PM


Resigning is an exceedingly honorable thing to do. Ultimately, it is a balancing test: is the public good more served with you on the bench, even as you do things that strike you as unjust; or is the public (and your personal) good better served by your public resignation?

There may be cases in which resignation is not enough--i.e. that you have an affirmative moral duty to stand up and defy. But those cases are few and far between indeed.

And they are extra-constitutional cases; not your basic "the Ratner law is unjust" scenario.

Posted by: Hillel Levin | Jun 30, 2005 2:47:59 PM

I didn't quite have it right. One judge resigned. Another, who stayed, considered the possibility of Nuremberg liability.

See United States v. Yu, 1993 WL 497985 (Sweet, J.) :

"The rigidity of arbitrary mandatory minimum sentencing laws, in which the sentencing judge has no authority, has caused at least one judge, the Honorable J. Lawrence Irving of the United States District Court of the Southern District of California, to resign his commission. See Criticizing Sentencing Rules, U.S. Judge Resigns, N.Y. Times, September 30, 1990, at 22; Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 Calif.L.Rev. 61, 73 n. 51 (1993). Perhaps he considered, as I now do, the applicability of the Nuremberg principles of personal responsibility to this arbitrary and ministerial act dictated by Congress."

Posted by: Kaimi | Jun 30, 2005 2:45:30 PM


An interesting question is whether judges upholding an immoral law are liable under the Nuremburg principle. As I recall, at least one SDNY judge resigned when the sentencing guidelines were first adopted, citing to the Nuremburg principle as a primary reason.

Posted by: Kaimi | Jun 30, 2005 2:41:42 PM

The Ratner case just illustrates the age-old debate over rules versus standards. On the one hand is the value of certainty. On the other hand is the value of flexibility. Both are valuable. There is no easy answer to rules-versus-standards, and most people support some ad hoc balance that contains both rules and standards.

Posted by: Kaimi | Jun 30, 2005 2:39:39 PM

I agree with Simon entirely. (Except, of course, for the part in which he disagrees with me.) I especially agree with this statement:

"[W]hen the people do something stupid - an 18th Amendment, for example - the less vigorously the Court enforces that amendment, the less reason the people have to pass a 21st Amendment."

I refer interested readers to a previous post of mine: http://prawfsblawg.blogs.com/prawfsblawg/2005/04/amosanon1_on_sc.html

It is not precisely on topic; but the general point is that courts should not be in the business of saving the people from themselves.

The only lasting changes are those that the people themselves embrace. A point I made here: http://prawfsblawg.blogs.com/prawfsblawg/2005/04/better_to_be_ri.html

Caveat: I am not--and no one is, I think--an absolutist on this subject. That is, we all agree (I think) that there may be cases in which judicial resistance is not only acceptable, but required. But I believe more robustly in the duty of judges to uphold their oaths than Paul apparently does.

And if the people are stupid and insecure enough to want a flag-burning law, they they deserve one.

Posted by: Hillel Levin | Jun 30, 2005 2:38:41 PM


Assuming the court got the strict legal analysis correct (which I do assume, without deciding), then it did the right thing.

I feel bad for Ratner, and the absolutist rule might have produced rotten results--and it might be a rotten rule in general precisely because it leads to unfair and unjust and vile results. But if Supreme Court case law makes it clear that the rule is permissible, then the court did its legal duty. More important, it discharged its moral duty to uphold its oath to the constitution and laws. I can think of circumstances, as I said, in which a different moral duty would trump the duty to uphold and oath of office (e.g. if they were going to execute Ratner).

Frankly, as bad as I feel for Ratner, he should have known about the zero tolerance policy (which probably works to a great degree!), and should have taken the knife himself to a teacher. In other words, he had other options. And if he chose this option because he felt morally compelled to do so, then so be it. It is honorable for him to sit suspended under such circumstances.

What really should happen here is that the Ratners should have publicized their plight and gotten the community so outraged as to change the policy. But even then, the policy as a whole might be worth Ratner's suspension. Think about this: what if the policy were changed, and that as a result someone brought a knife to school and killed someone? I'll take zero tolerance over that result.

Even if the policy is horribly unjust and wrongheaded (and there may well be much better alternatives!!!), the court is not legitimately situated to undo it.

The courts are not in the business of enforcing fairness. They are not even in the business of providing justice. They are in the business of law.

Posted by: Hillel Levin | Jun 30, 2005 2:30:03 PM

I disagree fundamentally with Paul. If the flag burning amendment passes, and Congress does enact such laws (which they are free not to do, under the terms of the amendment offered, you'll notice - the amendment doesn't say that flag burning is illegal, any more than the 5th amendment says capital punishment is required - it says the legislature may vote to create such a law, if the majority think it wise, just as it says the legislature may REPEAL that law, if a majority later thinks that wise), and cases come before the court, the court should absolutely be enforced by the Court.

Even if we allowed, for the sake of argument, that the court had any constitutional right whatsoever to attempt to void an amendment, which I do not allow, when the people do something stupid - an 18th Amendment, for example - the less vigorously the Court enforces that amendment, the less reason the people have to pass a 21st Amendment.

I also disagree with Hillel's defense of Kelo, as per comments in that thread. I join MJ's comments at June 30, 2005 12:49 PM in their entirery.

Posted by: Simon | Jun 30, 2005 2:18:48 PM

I could be wrong, but I think that the majority of academics ascribe to some version of Hart-and-Sacks-ianism, meaning that they probably think it's wrong for the Supreme Court to engage in lawmaking.

There are other theories. Some versions of Dworkinianism, with the judge in the "Hercules" role, would certainly provide for actual lawmaking by the Court. The same for at least some branches of CLS.

But not the run-of-the-mill Hart-and-Sack-ian.

Posted by: Kaimi | Jun 30, 2005 2:07:54 PM

Let me give you an example here, that I hope will offend you, MJ, greatly enough to demonstrate that there's cause for judges to exercise their consciences in today's society. The remainder of this comment is the full text (minus footnotes) of Ratner v. Loudoun County Public Schools, 16 Fed.Appx. 140, 2001 WL 855606 (4th Cir., 2001) (unreported, for good reason). I ask you if you take extreme enough offense at this to say that the judges should have defied the law:



Posted by: Paul Gowder | Jun 30, 2005 2:05:18 PM

Ethan: I apologize if I didn't credit you with knowledge of the history of 501. What I should have said (and could say, if you'd like me to change it) is that your point is even stronger than you make it out to be in your comment.

I'd also agree that this is not the best example. But it is today's example.

And I certainly believe that the legislature may delegate to the courts. The question here is whether the legislature in this case *has* delegated this power to courts; and I don't think so. So the example is not the best, but it is a reasonable one.

Posted by: Hillel Levin | Jun 30, 2005 2:01:33 PM

plus if someone did believe it was right to do one of those things, then civil disobedience includes the necessity of accepting the punishment. We'd still get to convict and punish them.

Similarly, a judge who refuses to enforce an utterly unjust law should be willing to accept impeachment, public censure, etc. etc. Such is the consequence of being free.

Posted by: Paul Gowder | Jun 30, 2005 1:52:24 PM

I don't think anyone really believes it is right, in the case of a principled stance based on personal conviction and the exercise of their moral agency, to molest children, rape women, speed, etc. etc.

Posted by: Paul Gowder | Jun 30, 2005 1:50:37 PM

Um, I'm aware of the drafting history of 501 and proposed Rule 503. I didn't mean to be snarky. Just a small point that this area may not be the best one to make general points about the respective roles of courts and lawmakers. Indeed, this is an easy case of "delegation." One could still argue, of course, that the delegation in 501 is inappropriate--but we aren't that anti-court, are we?

Posted by: Ethan Leib | Jun 30, 2005 1:47:15 PM

"We can't tell them to ignore it by saying "this is the law, you must."

I can think of about 50,000 examples that say "Yes, we can."

People who believe it is right to molest children, rape women, drive faster than the posted speed limit, buy beer before their 21st birthday...

What in the world do you think the law is if it is not a series of agreed to proclamations, backed by force of fine or confinement, of things that you either cannot or must do, regardless of what you personally think is "really" right and wrong?

Posted by: MJ | Jun 30, 2005 1:42:09 PM

The mass of men serve the state thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailers, constables, posse comitatus, etc. In most cases there is no free exercise whatever of the judgement or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purpose as well. Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others--as most legislators, politicians, lawyers, ministers, and office-holders--serve the state chiefly with their heads; and, as the rarely make any moral distinctions, they are as likely to serve the devil, without intending it, as God. A very few--as heroes, patriots, martyrs, reformers in the great sense, and men--serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it. A wise man will only be useful as a man, and will not submit to be "clay," and "stop a hole to keep the wind away," but leave that office to his dust at least:

"I am too high born to be propertied, To be a second at control, Or useful serving-man and instrument To any sovereign state throughout the world."

He who gives himself entirely to his fellow men appears to them useless and selfish; but he who gives himself partially to them in pronounced a benefactor and philanthropist.

How does it become a man to behave toward the American government today? I answer, that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave's government also.

All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist, the government, when its tyranny or its inefficiency are great and unendurable. But almost all say that such is not the case now. But such was the case, they think, in the Revolution of '75. If one were to tell me that this was a bad government because it taxed certain foreign commodities brought to its ports, it is most probable that I should not make an ado about it, for I can do without them. All machines have their friction; and possibly this does enough good to counter-balance the evil. At any rate, it is a great evil to make a stir about it. But when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer. In other words, when a sixth of the population of a nation which has undertaken to be the refuge of liberty are slaves, and a whole country is unjustly overrun and conquered by a foreign army, and subjected to military law, I think that it is not too soon for honest men to rebel and revolutionize. What makes this duty the more urgent is that fact that the country so overrun is not our own, but ours is the invading army.

- Henry David Thoreau, Civil Disobedience

Hillel: I agree that Kelo certainly doesn't get you into civil disobedience territory (although the people whose homes are being taken away may disagree!). I'm not so sure about flag burning. If I were a judge, I don't think I could convict someone under an anti-flag burning statute, I'd resign first, or simply refuse to convict.

Judges are people too. They are actors, subjects, women and men with consciences. So are juries. MJ, at a certain level, your Mississippi jury is in the right. Not because of their views: those are evil. But because they have a principle and they hold to it, "law" notwithstanding. Obviously, we need to change that principle, but we can't tell them to ignore it by saying "this is the law, you must." We have to convince their hearts that it is wrong.

Otherwise we dehumanize them, and we dehumanize the judges. We take away their moral agency and make them nothing more than objects -- tools of the state.

Posted by: Paul Gowder | Jun 30, 2005 1:09:06 PM

If the people decide to amend the constitution to execute me, it seems to me that my options are:

1. Try to convince the majority to change their mind.

2. Abscond.

3. Lead an armed revolution.

But asking one branch of government to ignore the very document that theyhave sworn to uphold because they're none to crazy about what the American people put in it is no different than a Mississippi jury saying" I don't care what the law says, I'm not going to convict a white man of murdering a n*****."

Posted by: MJ | Jun 30, 2005 12:49:55 PM


What you are really suggesting is that there may come a time when something extraconstitutional is necessary. Perhaps marshall law preventing whatever horror you've identified from going forward; or perhaps revolution; or perhaps secession. (Or perhaps you just move to Canada?)

Indeed, there may come a time when a Judge is morally required to disobey the law. For instance, judges in Nazi Germany. But note that if there are enough people who vote to sterilize everyone or to kill muslims, your moral judicial opinion isn't going to stop that from happening. It might just get you killed as well.

But a flag burning amenmdment--stupid and contra-democracy as it may be--or Kelo just don't get you there. (I don't know MJ, but assuming he/she has done nothing remotely deservant of the death penalty, then an order to execute him/her might be one to disobey.)

So yes, if I am a judge and the stupid flag-burning amendment passes, then I am required to uphold and enforce it. Otherwise, we leave it up to each and every unelected judge.

Let me ask you this question: What makes you think that judges will use their powers for good more often than The People will? If we leave it to judges to make law, unconstrained by democratic processes, how do you know they will get it right more times than not?

Posted by: Hillel Levin | Jun 30, 2005 12:49:24 PM

I'm no evidence scholar, but I thought Fed R Evidence 501 specifically asked courts to fashion privileges. Now Federal Rules don't quite emerge from the Voice of the People. But then neither do most federal laws, whose democratic pedigreee cannot be questioned from your worldview.

Posted by: Ethan Leib | Jun 30, 2005 12:45:33 PM

MJ: what if the people vote to personally execute you?

Posted by: Paul Gowder | Jun 30, 2005 12:22:34 PM

"suppose the flag-burning amendment actually passes the Senate and the States. Should the Supreme Court enforce it? I don't think the answer is necessarily yes."

You could only say something like that if you believe that your opinion about what America should be, is so enlightened as to be above the law. How is that statement any different than George Wallace standing in front of the school doors? How is that any different than what Roy Moore did in Alabama?

As painful as it might be to you, when a supermajority of the elected representatives and citizens of this country decide to alter the meaning of our constitution, even the oracles at the supreme court and in academia are obligated to follow it unless and until your can get a super majority to agree with you or you raise an armed force to overthrow those you disagree with and start anew.

Posted by: MJ | Jun 30, 2005 12:17:01 PM

"I think we all agree that the Supreme Court should not be in the business of making law." Do we? I would guess that most law professors would say that the Supreme Court *should* be in the business of making law because democracy is untrustworthy and needs to be, er, tempered.

Posted by: lawprof | Jun 30, 2005 12:06:07 PM

Let me ask the really wild hard outerspace question: what is to be done when the people go mad?

Can democracy be permitted to commit suicide? Can we be permitted, by democratic processes, to institute a system that, for all intents and purposes, hands over control of the basic necessities of human life, the entire public sphere, the means of production, and our legislatures, to an elite oligarchy of corporate managers? Can we vote to give up our right to have our vote counted?

More concretely: suppose the flag-burning amendment actually passes the Senate and the States. Should the Supreme Court enforce it? I don't think the answer is necessarily yes. An anti-flag burning amendment would defy the basic principles of democratic governance, which include the unfettered right to criticize the country. So maybe if an anti-flag-burning amendment gets written into the constitution, we should recognize the existence of a higher law (natural law???) that supersedes the constitution.

The same can be said for Kelo, and other bad policy. Lets look at really dramatically evil policy (which I don't claim can be compared to Kelo).

Suppose we get enough votes together to pass a bill that requires sterilization of the mentally ill, or to amend the constitution to eliminate the thirteenth amendment. Suppose another terrorist strike happens and a nutball religious movement devoted to killing all Muslims takes political power and gets enough votes to set up concentration camps and to amend the constitution accordingly.

At what point do we have to say "democracy be damned, the people have gone mad?"

Posted by: Paul Gowder | Jun 30, 2005 12:00:03 PM

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