Friday, September 25, 2015

Distinguishing Reality from Fantasy

No matter how good of an argument for Departmentalism my exceedingly brilliant friend and brother, Steve Hays offers (here, for example), Departmentalism is a pipe dream. It's not the way America actually works.

In practice, in America, the Supreme Court has a final say. Knowledgeable advocates of the position Steve Hays mentions continually rue this. For example, Ed Whelan, as quoted by Steve Hays in an earlier post, states: "We live in a legal culture besotted by the myth of judicial supremacy." And again: "Although there are some scholars, both on the right and on the left, who challenge it, most lawyers across the ideological spectrum, having suffered the detriment of a modern legal miseducation, embrace it." In other words, Whelan's position is a minority position that reflects the way he thinks the system should be not the way the system actually is.

That said, I don't think any of the arguments for Departmentalism are very compelling. For example, Whelan argues (quoted by Hays):
It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision.
Whelan is whiffing. There are at least three strikes there.

1) Although in some cases the Supreme Court decides whether something is unconstitutional as applied, the Supreme Court often decides whether something is unconstitutional on its face, and consequently void. Whelan tips his hat to this point, but doesn't seem to realize its far-reaching implications.

2) Not all of the Court's decisions relate to the Constitution. Sometimes the question requires interpreting a piece of legislation and deciding what the legislation means. We'll come back to this issue shortly.

3) In America, no one has to "regard the law as unconstitutional" (in the sense of agreeing that the Court decided rightly) nor must they "accept and follow the rationale" that the Court offered. They are free to think the Court decided wrongly. However, even if they disagree with the ruling, they have to obey the ruling until it is overturned. That's true whether it's a really controversial Constitutional issue or a less controversial legislative issue. And that is how the system works. It's easier to overturn decisions about the meaning of statutes and much harder to overturn interpretations of the constitution. But the same rule applies.

According to Whelan, the Court didn't come up with judicial supremacy until 1958. That kind of claim runs face-first into a more complete history of the situation (see here, for example). Famous cases along the way include the Court striking down the original income tax law, leading to a Constitutional Amendment to overturn the court's decision.

The most bizarre part of Whelan's argument is this: "But none of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge’s view that a law is unconstitutional." What would be the point of having a judiciary that no one had to obey? The idea that the Supreme Court's decisions on constitutional matters are just advisory is just nuts. One doesn't have to agree with the Court, but one does have to obey the Court.



michael said...

TF, again this is very deep drilling. I am in hopeful glee and anticipation for Steve's response! I hope it comes today!

I would like to ask you to clear up a sentence if you don't mind?

You write: //It's easier to overturn decisions about the meaning of statutes and much harder to overturn interpretations of the constitution.//

Can you clarify that sentence?

Let me ask, do you mean to say it is harder to "overturn" OR "change" the construction of a part of the originally ratified Constitution finally in 1789 or do you mean to say it is harder to overturn a writing or a law established by the Legislature, that is, "an interpretation" of any part of the construction of the now current U.S. Constitution?

michael said...

TF, later on down in the citation you link to regarding Marbury v. Madison, we read this:::>

"... If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance."

Seems to me this is the backdrop basis for adhering to the Supreme Court's rulings that are applied to either the Executive or Legislative branches of the government of the United States when they rule contrary to an Executive or Legislative action.

However, the big elephant in the room is as Justice O'Connor pointed out when she and Justice Breyer were reviewing the Brown v. Board ruling of the Court, there are, at that date in time, about 310 million people who have a voice in this and in the case of the South/segregation, the Court realized they have no enforcement power to enforce their ruling. It took the then President, Eisenhower, to send in Federal Troops under his command to enforce the ruling to integrate both public school systems which struck down Plessy v. Ferguson. And that in and of itself proved only temporary because a new board of Education was appointed and they simply shut down the public school system. That of course led to for the most part the peaceful change nationwide over time. The ruling did not bring about overnight change but it did bring about change.

I heard Justice Breyer say to several High School Students that the Court's rulings don't always cause immediate overnight obedience on the part of the people for whom they serve when publishing their decisions.