Dear Barry,

''Judge Neil Gorsuch has robustly criticised the use of courtrooms as forum for social change. ''

Any candidat that would not profess a faith in this proverbial lye would be automatically reject.  It is a total evidence that law making is social engineering and that in a common law system the interpretation of the law by the supreme court judges is by definition a form of law making.  This is total evidence.  What is less evident is why is it necessary for all supreme court judge to profess the faith in this lye?   Good interpreters should at least not be a lyer about the nature of interpretation.  

I see a parallel with the abrahamic religious tradition based on a holy book which is said to be revelation of God.  They the religious authority claims to be simply interpretating the holy scripture and would deny any arbitrary or creative side to the interpretation act.  Acknowledging it would remove the holy link with the authority of God.  In the case of the american supreme court, the holy scripture is replaced by the holy constitution handed to us by the holy fathers of the constitution.  So the judge act like religious authority in the Abrahamic tradition, to be simply messenger in the holy scripture.  Acknowledging any creative side to the interpretation would remove this the authority in the eye of the common people.  The problem with this is, is that one need to be an idiot to believe this.

Louis makes a good point.  In fact, to be realistic, even with a "strict" interpretation of the laws, just operationally, the court will be engineering the social fabric.  To think otherwise is not really a lie, I believe they actually believe what they say, but logically it is nonsense. The law is made by the legislature and it takes the lawyers and the justices to figure out how that is implemented and what that means.  Every law has room for interpretation, it matters greatly how that interpretation is to be made. Therefore the court, logically has to be a forum for social change.  The right is always against what they call "activist judges" but in reality all are activist judges, it's just that they don't like the direction of those judges thrusts. Scalia was very much an activist judge, he was just "conservative" in his view. 

Judge Gorsuch is correct in his assertions (and through his opinions) that the court is no place for social activism. We often hear conservatives loudly decrying "activist" judges (every time a ruling goes against their particular social engineering desires). However, it apparently depends on which political party you belong as to how (and what) you define as "social activism." Gorsuch was nominated (and the conservatives are supporting him precisely on this basis) because they believe he will support their fondest project of "social activism" ... the overturning of Roe-v-Wade ... and thereby, achieving their fondest social-engineering project of outlawing abortion throughout America.

As a progressive-liberal, I fully realize that not objecting to Judge Gorsuch runs counter to the dogma of my own political "party," who have become as guilty as the conservatives on the other side in trying to choose "biased" justices for the Supreme Court, who will favor their particular "social engineering" objectives.

I believe both parties err in seeking biased "activist" judges, and particularly in this case conservatives err badly, believing Judge Gorsuch will allow his personal biases to interfere in interpretation of the law, and go against against abortion in his findings, no matter how (venerable or how) settled the law is on this issue. Yes, he is a "textualist" (in the same vein as Scalia, except his genteel legal scholarship and magisterial demeanor are very different than that of the abrasive arrogance of Scalia ... who IMO often permitted his personal biases and hyper-inflated ego, to make an ass of himself and the law), who I believe is less likely to interject social biases (or a puffed-up ego) into his findings.

Textualism is a formalist theory that primarily interprets the law based on the ordinary meaning of the legal text, and not considering non-textual sources such as intention of the law when passed, the problem it was intended to remedy, or significant questions of the justice and rectitude of the law. Consequently, textualists (on the Supreme Court) tend to have difficulty in interpreting law relating to social issues (or any point of law) that is not expressly set out in the constitution. Conservatives (especially the anti-abortion activists) support Gorsuch because they believe (wrongly, I think) that Gorsuch is a "strict constructionist" that can be counted-on to overthrow Roe-v-Wade, for the simple-minded reason that the constitution does not expressly authorize it. But (IMO) they err.

Strict constructionism is often misused by laypersons and critics as a synonym for textualism. Nevertheless, although a textualist can be a strict constructionist, they are separate views: Justice Scalia, himself, for example, warns that "[t]extualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be... A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Similarly, textualism should not be confused with the [now deprecated] "plain meaning" approach, a simpler theory used prominently by the Burger Court in cases such as Tennessee Valley Authority v. Hill, which looked to the dictionary definitions of words, without reference to common public understanding or context.

So, I do not find the nomination of Judge Gorsuch to be objectionable (in fact, his is the first nomination of Trump's to an important position that is not an obviously deplorable or despicable choice), PRECISELY because I believe he will not engage in "social activism" but will interpret the law (perhaps a bit too "textually," yes, but that is a defect less dangerous than being socially biased) and not be affected by social currents nor attempt to "moralize" from the bench. 

Barry,

I disagree. From all of the biographies that I have read on Judge Neil Gorsuch, I would say he is an ultra-conservative. He is consistently labelled as a staunch believer that the framers of the US Constitution wrote in plain English and that what they wrote was not intended to be "interpreted", but rather stood on its own in simple meaning. Basically, he believes in the literal reading and application of the constitution. While I agree that there have been some interpretations by the courts that stretch the imagination, I also strongly believe that the founders could not foresee every twist and turn in our modern society. If that is the case, then the constitution must be interpreted when applying it to our modern way of life.

This does not mean that I think that the courtroom should be used to for political gains, but the court is where our disagreements are decided. Those disagreements include the interpretation of laws and usually hinges on the "intent" of the drafter of the law.

If he is indeed a "textualist" and a strict follower of the language, then we would see him ruling that the second amendment deals with "a well regulated militia" only.  Let's hope so. 

@ James

But, the courts were not (constitutionally) established as a place to arbitrate social issues ... only for deciding / interpreting /applying the law ... if the law (statute or constitution) does not expressly address an issue (whether a newly arisen social issue, or anything else not contemplated by prior law), then it is the duty of the Congress to provide new law [text] that does ... it is not a duty (or function, or privilege) of our courts ... in fact, IMO this [writing new law by legal fiat & then slavishly honoring its precedence] is forbidden to the courts by the very constitution that clearly established, in the separation of powers, that power [to originate law] was reserved exclusively to the Congress.

Bob,

If laws were not meant to be interpreted and Congress had to amend or draft a new law for every little variation, then we would be looking at billions of laws or amendments. No, the Courts do not make law, they interpret and enforce laws. Congress has the purview and right to make changes to existing laws in order to "clarify" them if they so think it is necessary. And they very well can and should if they feel it is important. However, when a law is unclear in application, then the only recourse is to seriously consider how it would apply in that situation. If not, then we would have millions of disagreements that are undecided because there would be no clear, plain law that could be found to apply without ambiguity.

As for political progressiveness and the courts, I remember reading about one law passed in the mid-19th century in the US that said something like "This law applies to all within the city limits of Boston". A business brought the law before the court, who ruled that the crafters of the law did not intend for it to apply to commercial establishments. The court's rationale was that by "all" the legislature meant "citizens" and that if they had intended otherwise they would have specified "citizens and businesses".

James 

How close are you to Plaquemine?  I worked with a law firm there a few years ago on a Big Pharma case.  It resulted in payouts to the plaintiffs, but not as high as they should have been.  Straight after that Federal pre-emption stopped any more actions.

I do believe that if Judge Gorsuch had been around then he would have ruled in a different way on the pre-emption.  I hope I am not wrong but even though he is a 'conservative' with all the baggage that it entails he also looks to he law rather than ideology.

Barry,

Plaquemine the town or Plaquemine Parish (county)? The town is not located in the parish by the same name. However, approximately 50 miles (80 k) from both.

Louisiana has struggled from time to time on limiting exemplary or punitive damages. I think at one time there was a $100,000 max. I also seem to remember there was a $33,000 cap on vehicle replacement claims that had not kept up with the rising prices of automobiles. Louisiana also has a $25,000 per year wrongful imprisonment with $330,000 cap.

I have heard said that the Democrats need to save their SCOTUS appointment protest until the next candidate for the Supreme Court. They are saying that Gorsuch is very like Justice Scalia and even when on hunting or fishing trips with him and so he is not totally unacceptable. However, they also say that he differed with Scalia on how much interpretation was needed for the Constitution. I also saw where he believed that just because a civil authority displays the Ten Commandments was not justification to require them to allow other religions to display their items. This suggests that he would side with employers, etc. that treated non-Christians differently.

James

Plaquemine the town.  The Pendley Law Firm.  I was working to match US and UK law firms working on drug injury litigation and failure to warn cases.  I had the privilege to work with Baum Hedlund too.  The FDA put paid to a lot of the failure to warn cases by the neat trick of Federal pre-emption.  I was involved in some Qui Tam cases against Big Pharma too.  

Judge Gorsuch was right in his decision on the Ten Commandments because it was defending religious freedom.  Displaying religious symbols is a personal decision and it would be just as wrong to require a Muslim to wear a crucifix in the interests of 'equality' or whatever.  The defence of religious freedom is a major constitutional issue and it would be completely contray to the Constitution to require any person or organisation to display religious symbols. 

There is certainly need for Constitutional change especially on the 2nd Amendment.  It is dramatic irony that the 2nd Amendment was drafted at a time when guns were a necessity to protect the early Americans and now it represents one of the greatest dangers to modern Americans.  I don't think we will see any change on this under the Donald's administration.

I think many of us do not see it as "defending religious freedom". This has to do not with individual citizens, but with the State. In a pure "separation of Church and State", when the State promotes, by display on government property, one religion and refuses to allow other religions equal display, then it gives the impression of favoring that religion over all others. In courthouses it has been argued that civil law is based on the biblical 10 Commandments. However, the tenets of law go back further than Christianity and can be found in many civilizations.

State-sponsored prayer before or during governmental events has been poorly, in my opinion, determined to be a "personal" choice of whether to "participate" or not and the United States government now includes other religious invocations at major events. However, while governmental bodies are obstinate in allowing the display of the 10 Commandments in courthouses and council chambers, and government entities open their sessions with Christian prayers, these very acts announce that government places Christianity before all others. In addition, "personal choice whether to participate" in prayer is laughable when one can not avoid hearing the invocation. However, while most governmental bodies still open sessions with prayer, it has been dictated in public schools that open prayer is a violation of Church and State. Thus a message of "do not do as I do, but do as I say".

Please note that I am a Christian. However, I am one of those that feels that there was good reason the founders of the Constitution called for the separation of Church and State. To allow a co-mingling, even to a small degree, potentially throws the door open to abuse.

Barry,

Re. Separation of Church and State.

As Bob and I have noted before, churches with non-profit status in the US are banned from officially endorsing a political candidate on penalty of losing that non-profit tax exemption. However, we are aware of church congregations being told by their ministers that they "are going to Hell" if they don't vote for a particular person. This ban on church participation in elections was put in place in order to prevent undue religious influence in an election or so that a particular religion does not install a theological president into office. And yes, I realize that religion still plays a big "unofficial" role in US elections.

However, Trump has now sworn that he will remove the ban on non-profit status religious organizations participating in elections. This is a step towards a theocracy.

The problem is also that judges can refuse to hear cases, thereby acting every bit as intrusively upon the prerogatives of the legislators.  Not hearing and stalling tactics also "legislate."

Now, is interesting To ask: if the decision of the federal judge to stop or block the executive order(EO) of Trump would be denied or desestimed for Gorsuch?.

The answer is: Gorsuch will suport the EO, although be inconstitutional. He will find the legal way to defend the EO based in the National Security/NS), although the EO violent the first amendament. The NS is a reason of superior order. But, we will see how will work the estructure of power in front of rule of law, indoubtely USA will be an example for the world with any decision. While, Berkeley University is under threatened of not to receive financial. This threaten, resemble to maduro decision not give it financial support to National Assembly in venezuela from 8 months ago. This is illegal and irresponsable of part of maduro.

But Trump what will do? The same of maduro?..

It is a pity to be in this situation. The wall pre exist first in the mind and USA must be different of URSS. Reagan said: tear down the wall. What happen with the history of USA? Mr Trump must to reflexion, he must have a chance to think and decide with justice and cold head and attached to concept of freedom.

Regards

Each day sounds more and more like 1933!

I agree with Bob Skiles

regards 

I agree with the answer of Bob Skiles. Court must be kept away from any political influence for the sake of both justice and democracy.

Regards

SM Najim

"There is hardly a political question in the United States that does not sooner or later turn into a judicial one"

Alexis de Tocqueville, Democracy in America (1840)

The interpretation of the law inherently entails a choice between various options. Those options can often be traced back to certain political convictions. The choice made in Roe v Wade is as political as the willingness to overturn it: it is trying to give direction to society in accordance with your own convictions. The idea that exists in some quarters that a judge should merely apply the law shows a lack of understanding of the judicial function, especially in the case of judges dealing with constitutional issues. It is not for nothing that judges are heard about their believes before being appointed; they are sensu lato part of the political decision-making process.

The 'correct' interpretation of the law is in such contexts often nothing more than a veil to mask certain political convictions. And so is the preference of one interpretation method over another: preferring an orginalist interpretation will lead to different outcomes than when one would used legislative intent. In case of the former, it is very likely that you are using the law to prevent or limit societal change; in case of the latter, it is very likely that you are using the law to facilitate societal change. Unless judges have no discretion at all because the law is extremely detailed (this is where all choices have been made by the legislator), every bit of discretion allows for a value judgment. Even the lowest courts do not escape this logic. Gorsusch criticism is thus as political as the practice he is trying to criticize. That should be no surprise: politics is inherent in the task of a constitutional court.

Do not be mistaken: I am not arguing for a government of judges. But when discretion is there, choices have to be made. And in that choice, the legal outcome will be affected by a judge's convictions about what is just. That does not mean that a judge has total freedom: a decision should not be alien to the society and the context in which the decision is given. However, in a diverse society there is always competition of ideas. A judge may lean to one or the other.

Adam Smith in Lectures on Jurisprudence (1763) said that:

"Perverse and unreasonable behaviour by rulers establishes the right to oust them and an individual ruler is more likely to be guilty of this than a more collective governent"

Smith is talking about ousting via the legal process rather than by violent revolution. It has to be noted that it is only in a democracy under the rule of law with a separation of powers that this is possible.  All the rest have little choice but to opt for the violent.

The legiature is the proper forum for political progressivism.  Legislators are by sefauly representatives of their constituents.  Turning these decisions over to a handful of politically appointed lawyers is wrong.  It's wrong to place the lawyers in that position and it undermines the voice of the community.  

Scott

The laws don't mean anything until they are disobeyed or challenged. That will occur in the courts. A law that is never challenged in court is like the tree that falls in the forest and there is nobody to hear it fall. Therefore, the courts are the ONLY place the legislative issues can be worked out. It in no way undermines the voice of the community'

The working definition of an activist judge is one who made a decision you didn't agree with.  

James,

The issue is whether courts are the proper.forum for political progressivism.  No.  They are not.  Political progressivism, change should be driven from the community level through representatives in the legislature.  Courts lack the legitimacy to fulfill this role and undermine representative democracy when they do.  

Scott

I guess I would agree with you in principle if I thought that was actually happening.  I do not believe it is in any way.  The judges are interpreting the laws that were written by the legislature (the "people" if you will).  The courts can't just come up with something from nothing, they can only work with the laws as written.  So, as far as I see, there is no undermining anything.  You may disagree with that ruling and that interpretation, that's why all 9 judges hardly ever come up with a unanimous decision, but they must work with laws that were given to them.

Thus I don't accept the argument that either progressive or reactionary principles are promoted in the courts.  The laws need to be written and provided to the judges.

Mainz, Germany

Dear Turner & readers,

Thanks for the invitation to participate in discussion of this question. 

I agree with the following statement from the linked article by Judge Gorsuch:

This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs — real-world laboratories in which ideas can be assessed on the results they produce — are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

---End quotation

I would emphasize, much in the spirit of the article, that judicial proceedings are intrinsically adversarial. Over-reliance on the courts in questions of social policy tends, consequently, to amplify the already adversarial and divisive character of contemporary politics.  Gorsuch also correctly emphasizes the dangers implicit in the politicization of the judiciary. 

Judges do and must interpret the law. Typically, the judge tells the jury what the law is, and the jury decides on questions of fact and makes decisions, in accordance with the rules of evidence--also determined by the judge. That the judge is obligated to tell the jury (and the public) what the law states, in relation to a case at hand, shows us that the interpretation of the law is an affair of specialists who are expected to have a deep knowledge of the law, its history and development.

You might think of it this way: We have general dictionaries which report and summarize general usage and define words accordingly. But in any specialized field or discipline, you will also find quite specialized dictionaries which are based on usage within the particular discipline. The law and the interpretation of the law exists in cultural and national traditions, and judges typically make reference to the relevant tradition in their interpretations of the law. Generally, this is done in terms of reference to pre-existing precedent. 

Given that general dictionaries express generalized usage, they reflect the general cultural background of the speakers and writers from whom the data of usage is collected. Specialized dictionaries of legal terms, on the other hand, select for the specifics of legal tradition and associated usage. 

The reference of the law and its legitimacy in relation to "consent of the governed" implies some tracking by law of the specifics of public mores, morality and the cultural specifics of a given society. Over-reliance on the courts in controversial social conflicts and questions will thus tend to divide the public in its view of the legitimacy of the interpretation of the law --undermining the legitimacy of the judicial system.

H.G. Callaway 

Mainz, Germany

Dear all, 

I have found the text of the President's second Executive Order concerned with travel and visas. Its available on-line from the White House. What I found especially interesting is the statutory justification of the Executive Order, that reads as follows:

In ordering the temporary suspension of entry described in subsection (b)(i) of this section, I exercised my authority under Article II of the Constitution and under section 212(f) of the INA, which provides in relevant part: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. 1182(f).

---End quotation

See:

https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states

It struck me that this legislative grant of powers to the Executive is very broad indeed. Its a good example, or an especially dramatic example of the scope left open for " rule making"  within the executive departments. I found nothing in the text of the Executive Order, however, implying discrimination on religious grounds --though this did belong to the campaign rhetoric of the recent election.

In spite of that, a Federal District Court in Hawaii has issued a Temporary Restraining Order to prevent implementation of the Executive Order, until such time as the merits of the case, brought by the Attorney General of Hawaii can be decided --in a higher Federal Court. The judge's order expresses a presumption that the complaint from Hawaii will be upheld --on the basis of the establishment clause of the first amendment --which forbids establishment of religion. 

Both the states and the federal courts do seem to be getting feisty. The administration can, of course appeal against the decision, and many seem to think they stand on much stronger grounds with the second Executive Order.

See the following short interview with the Attorney General of Massachusetts, who supports the judgment of the the Federal District Court in Hawaii:

https://www.youtube.com/watch?v=V_VdxK24Vz0

The constitutional argument appears to depend upon reading the President's campaign rhetoric into the Executive Order. Many think the Federal District Court of Hawaii will be overturned on appeal --which apparently has happened often enough before. The issue here may really be discrimination on immigration based on national origins. 

Is the second order constitutional? Is it consistent with the President's executive authority under the existing law? Comments invited.

H.G. Callaway

It looks like the Federalist interpretation of the Constitution will prevail.  

https://www.nytimes.com/2017/03/18/us/politics/neil-gorsuch-supreme-court-conservatives.html?emc=edit_th_20170319&nl=todaysheadlines&nlid=54374117&_r=0

Mainz, Germany

Dear Turner & readers,

The references to the Federalist Society in the linked article may be important, or maybe not. Recall that "Federalist" was the name given to the party of Washington, Adams and Hamilton in the early republic--prior to Jefferson's " Revolution of 1800." The Federalist party was essentially destroyed by the outcome of the War of 1812--to be replaced by the American Whigs with their greater emphasis on internal development, canals, toll roads, railroads, etc --and domestic manufacturing. Are we to think of the Federalist Society as more like the Federalist party of the early republic or more like the American Whigs who later replaced them? 

However, "federalism" is also frequently used to advocate due respect for the powers of the states, in contrast to greater emphasis on the powers of the federal government and centralizing or consolidating tendencies. The moderate or centrist positions avoid either extreme. 

What does the Federalist Society look like --After the Neocons, to use Fukuyama's phrase? 

See the reviews:

https://www.lrb.co.uk/v28/n19/stephen-holmes/neo-con-futurology

https://www.theguardian.com/books/2006/mar/25/shopping.politics

http://www.nytimes.com/2006/03/26/books/review/26berman.html

http://www.newyorker.com/magazine/2006/03/27/breaking-away-2

More basically, what is the federalist interpretation of the constitution? 

H.G.Callaway

The reason that the second order, like the first is unconstitutional is that it violates the prohibition of discrimination due to religion.  As stated, Trump tried to eliminate such language, but you do need to look at it in context.  His published statements supporting religious discrimination have to be considered.  The law allowing him to stop the immigration is "Trumped" by the constitution, and more importantly, morality.

Mainz, Germany

Dear Lloyd and readers, 

You take the view of the Federal district court of Hawaii. For myself, I am perfectly willing to let the courts eventually decide the issue as they see the light. I can imagine that the issues involved in the second Executive Order may go to the supreme court. 

Given what is actually written in the second Executive Order, it seems reasonable to believe that the President simply changed his mind about what it is constitutionally feasible to try to do. I objected to the campaign rhetoric myself--on constitutional grounds. But I do not see any reflection of that rhetoric in the second Executive Order. The decision of the Federal District court --in granting a Temporary Restraining Order, thus strikes me as contentious.

The morality of a nation's immigration law strikes me as something that reasonably takes into consideration the consent of the governed, as contrasted with the desires of others. Any country has only a finite capability to take in and naturalize people who may have little knowledge or familiarity with the mores, customs and laws of the country they arrive in. When there is a political reaction against immigration, then that is evidence that the existing capability has been exhausted.  

Take another look at the provision of the U.S. immigration law, quoted in the second Executive Order:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. 1182(f).

---End quotation

(Italics not in the original.) 

This is the law of the land, as passed by Congress. I know of no history of constitutional objection to it. The law is presumably consistent with the constitution or at least it has not been successfully challenged on grounds of the first amendment. I have even hear it argued that non-resident aliens are not generally protected by the Bill of Rights and the American courts. 

See my article on American pluralism:

https://www.researchgate.net/publication/262792709_INTRODUCTION_THE_MEANING_OF_PLURALISM_My_interpretation_of_William_James%27_pluralism

Pluralism, I have long argued, is a strength of the country. That includes all the varieties of people and peoples who have long been in the country and not merely the new or comparatively exotic recent additions. With all due respect to out most recent immigrants, I would say that pluralism and diversity are not absolute goods such that more is always better. America has shown that pluralism within bounds is both possible and positive. This is quite different from knowing that unlimited diversity is politically possible or a positive moral good. As cultural uniformity makes for ease of government, other things being equal, greater cultural diversity makes good government more difficult--note our growing inequalities over decades and the contemporary divisiveness in the country. 

We do know, however, that mass immigration can so change the demographics of states and regions to the extend of driving out one of the two established political parties. Extended periods of one-party rule in any polity, I believe, is detrimental to democracy. 

H.G. Callaway

Book INTRODUCTION: THE MEANING OF PLURALISM, My interpretation of...

It's nice to see you are perfectly willing to let the courts decide, since you have no other choice except armed insurrection, which I would guess you are not ready to commit to.

I also see how easily you are able to justify racism.  It appears to be based on the particular society and the willingness of the people in that society to be racist.  By that measure, there was nothing wrong with Hitler's Germany.  The people approved it all, they didn't like Jews so they were justified in eliminating them by any means.

You do know of constitutional objections, they have just appeared. The 9th circuit court was right in their interpretation.

Where I agree with you is in the problems of extended 1 party rule.  The fact that we haven't had that much is a strength of our system.  One of the weaknesses of the system is that people like Donald Trump and Andrew Jackson can get elected.    

Mainz, Germany

Dear Lloyd, 

The legal alternative to letting the courts decide would be congressional action or even constitutional amendment. Its pretty obvious that you aim to be provocative. 

Apparently you regarded it as racism to allow the mores and sentiments of the public a role in crafting the law. and public policies? Elsewhere this is known as democracy. "The just powers of government" as Jefferson put the matter " derive from the consent of the governed." Arguably, it does not belong to the just powers of government to change the grounds and demographics of public consent. That would amount to the politicians selecting their preferred electorate instead of the other way around. 

To equate temporary regulation of immigration, which is the only matter of substance in question here, with the mass murder of the Holocaust is a simple absurdity of hyperbola. It is also a personal insult. You apparently have little concept of the rule of law or of the Bill of Rights--or of personal decency?

I would say that you are yet to demonstrate the level of responsibility required of a public discussion --such as is required here. What you say is defamation and likely actionable at law. I do not justify racism. You are talking through your hat. 

H.G. Callaway

Mainz, Germany

Dear all, 

Readers of this thread may want to consult the following question and thread of discussion:

https://www.researchgate.net/post/Is_mutual_tolerance_a_needed_social_and_political_virtue

H.G. Callaway

The role of courts in a constitutional democracy a la Montesquieu is to interpret the law made by the legislature in a way that makes the government functional.  It is not to act as some alternative form of government or social activist.  

That said the courts must, and I emphasise must correct illegal and unconstitutional acts by a government even if those acts appear popular, even if they in part were the reason for that government being elected to office.

Governments are not simply conduits for the 'will of the people' as the populists claim.  Goverenments are often obliged to carry out tasks that the people do not like because again, contrary to popular opinion the people do not know what is right.

The appointment of judges under the Trump Regime is by all accounts going to lead to a 'narrow' interpreteation of the Constitution, or as some suggest an interpretation more akin to that of the founders.  Such an idea is of course fallacy and ridiculous.  The Constitution was written in a different age, many of its principles are as obsolete as the technology of the 18th century it was written in*.

I doubt we will seee a 'narrow' interpretation of the 2nd amendment to reflect the interpretation of a well regulated militia.

*The US Constitution was in fact written in the 17th Century in England as The Bill of Rights 1688.  It included provisions for everyone to go around armed to the teeth too.

The role of courts in a constitutional democracy à la Montesquieu is to interpret the law made by the legislature in a way that makes the government functional.  It is not to act as some alternative form of government or social activist.  

That said the courts must, and I emphasise must correct illegal and unconstitutional acts by a government even if those acts appear popular, even if they in part were the reason for that government being elected to office.

Governments are not simply conduits for the 'will of the people' as the populists claim.  Governments are often obliged to carry out tasks that the people do not like because again, contrary to popular opinion, the people more often than not do not know what is right.

The appointment of judges under the Trump Regime is by all accounts going to lead to a 'narrow' interpretation of the Constitution, or as some suggest an interpretation more akin to that of the founders.  Such an idea is of course fallacy and ridiculous.  The Constitution was written in a different age, many of its principles are as obsolete as the technology of the 18th century it was written in*.

I doubt we will see a 'narrow' interpretation of the 2nd amendment to reflect the interpretation of a well regulated militia.

*The US Constitution was in fact written in the 17th Century in England as The Bill of Rights 1688.  It included provisions for everyone to go around armed to the teeth too.

Mainz, Germany

Dear Turner & readers, 

Thanks for your comments regarding the U.S. constitution. I think this an interesting theme, but I am much inclined to think that Europeans get this wrong, likely from lack of familiarity with the workings and the legal traditions of constitutional interpretation.

You wrote:

The appointment of judges under the Trump Regime is by all accounts going to lead to a 'narrow' interpretation of the Constitution, or as some suggest an interpretation more akin to that of the founders.  Such an idea is of course fallacy and ridiculous.  The Constitution was written in a different age, many of its principles are as obsolete as the technology of the 18th century it was written in*.

---End quotation

The proper and customary language here would be "the Trump administration." Substituting "regime" in the American context, would suggest a lack of constitutional legitimacy --and you do not offer any defense of such a view. You may think the present administration wise or foolish, or perhaps in over its head; but that is quite different from questioning its constitutional and electoral legitimacy. Notice that the opposition accepted the results of the recent election, though, of course, they were none too happy with it. 

Secondly, given what we have seen, it remains unclear, to me at least, what sort of interpretative approach might be taken by judges to be appointed by the present administration. Keep in mind, too, that every such appointment will have to be approved by the U.S. Senate. The Republicans hold a majority in the Senate, but the Senators have their various disputes and differences among themselves, the Democrats will also be involved --in the preliminary committee hearings at least--and there is sure to be a public vetting of nominees in the press and in public discussions and debates. While some of the Republicans do favor more restrictive approaches to constitutional interpretation, I think we may reasonably suppose that there will be advocates of more expansive approaches --suited to use of the powers of the federal government in nation-wide economic consolidation. Expansion of the powers of the federal government is often publicly advocated as a means to social justice, but in fact it is often used to advance special interests. 

Lastly, though the constitution was first approved in the 18th century, reflecting the dominant political ideals of republican government, limitations of executive power and the liberty of the citizens, it has also been amended on many occasions : first there was the addition of the Bill of Rights, the first 10 amendments, later, after the Civil War --the 13th, 14th and 15th amendments, and later in the progressive era --the constitution was amended to add the federal income tax, votes for women, direct election of U.S. Senators, etc. There have been 37 amendments by my count. Some of these are fairy recent. 

See pp. 13ff:

https://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf

The basic idea of constitutional government is the limitation of the power of the state. Anyone who believes in, e.g., freedom of speech or freedom of religion, believes in limited government--in the U.S. these are constitutional limitations. 

It is also important to keep in mind that the courts have interpreted the constitution, and re-interpreted it in light of amendments, over centuries. The judicial interpretations are a standing elucidation and sometimes elaboration of the meaning of the text and this has often reflected changing problems and public issues. Judicial review--not to say judicial activism, helps keep the constitution attuned to the times.

Respect for the constraints of the U.S. constitution belongs, pervasively, to American political self-identity and patriotism. To denigrate the constitution is to put in question the long processes of American life and the resolutions or settlements of political conflicts which have kept it alive for the American people.

This is not to defend it as a universal model. It is in fact adapted to the historical contingencies and particularities of American history. But by the same token, it would be a serious mistake to think it could be replaced by some foreign or supposedly universal conception of democratic government.

H.G. Callaway 

Courts protect the rights of individuals and society in light of constitution of a country. How any court then keep it apart from social theories and changes. I have no expertise  on this issue, and that is my point of view for thinking.

HG

Actually I'm not.  I did not equate the temporary Muslim ban with the holocaust, I was just pointing out that your argument of the "will of the people" does indeed allow for that. If you want to take that as an insult, I think you're going a bit too far. In fact your statement that it may be actionable at law is laughable.  You don't like to be disagreed with or criticized, do you?

I still stand that your arguments taken to extent do indeed allow for the excesses.  At one time in this country, a democratic majority would indeed have supported that blacks be treated as untermenschen.  Would that have been the right thing to do?  I submit not.  I believe Barry has the right point about how governments need to act.

H.G.

I use the term regime as an irony.  I also think that describing it as an 'adminstration' at the moment might be a bit presumptuous.

Of course Trump has political if not moral legitimacy.  We have to be careful not to assume that governments have to be fair or benign.  The founding fathers did not believe in any such egalitarian concepts and staunchly stood up for vested interest and privilege.  That defines much of American culture today with wealth being seen as a natural measure of success while poverty is seen as indolence and deviance.

I do not think there is anything about Constitutional government that is difficult for Europeans to understand, Europeans invented it.  In the UK we eschewed a written constitution as uneccesary in a country with such a long legal tradition.  In some ways this is a good thing and in others a handicap.  

Of course the Constitutional government is also far from perfect.  Constitutions are often little more than platitudes with 'end runs' common.  As a student of American law for many years I have seen the US Constitution dodged on many occasions by the very system it is held to protect.

I still however am uneasy that the courts are often hijacked by campaigners who should take their concerns to the ballot box.  Adversarial justice is not a good handmaiden to constitutional democarcy. 

Mainz, Germany

Dear Ranjan & readers, 

The law is one thing, and " social changes and theories" something else, again. 

The courts are supposed to attend to the constitution and the law as it is written --and, generally, in accordance with judicial precedent. A court is not supposed to be swayed by short-term shifts in public opinion or public prejudices in relation to a case at hand. This is part of what it means that the judiciary branch of government should be independent and not overly political. If the courts and judges are perceived as excessively political, then this undercuts the legitimacy of their decisions.

In the U.S., federal judges are appointed and must be confirmed by the U.S. Senate. They hold office "on good behavior," and though they can be impeached by Congress, this has in fact only rarely happened. Once in office, their position and salary depends on no one, only their good behavior in accordance with the law and the supervision of higher federal courts.

All judges in the U.S. are sworn to uphold the constitution, and this includes the judges of the state and local courts. But state judges are often elected, and must stand for re-election. It differs from state to state. The tradition of electing state judges derives from the early republic and the strongly republican convictions of those times which often sought to give a more prominent place to the legislature as the chief protector of the people. The state courts cover criminal cases and also civil cases, under state law. In any case, federal judges, being appointed on a nation-wide basis, are rarely subject to local prejudices and influences. Moreover, if the federal executive doesn't like the decision of a federal court, then there is little they can do except to appeal to a higher federal court. The federal courts also mediate conflicts between state and federal law. 

Beyond appeals against federal court decisions, Congress can, of course, change the law, or even initiate changes to the constitution--which must be approved by the states. In addition, Congress controls the jurisdiction of the federal courts--the range of cases they can consider. People have some degree of choice in whether to take a case to a federal or a state court. 

H.G. Callaway

Mainz, Germany

Dear Turner & readers,

"Administration" is the traditional term. We have a new administration in Washington, whether we like it or not. The current administration, whether old or new is understood to be something temporary. Once the term is applied, then we can still ask or judge whether it is doing the administrating well or poorly. This works more or less like the British English, "the government,"  the "present government." You or others may judge the present British government of Mrs. May good or awful, but it is nonetheless still the present government. "The administration" works the same way. 

You go on to say:

The founding fathers did not believe in any such egalitarian concepts and staunchly stood up for vested interest and privilege.  That defines much of American culture today with wealth being seen as a natural measure of success while poverty is seen as indolence. 

---End quotation

If you had said, "the Federalists" instead of "the founding fathers" or if you had said, "Alexander Hamilton" then I might have agreed. But, I would not say the same about the Jeffersonian republicans of the early republic. None of them were perfect by contemporary standards, but they were far ahead of their times.

My own analysis of the current problems emphasizes the neglect to build down the military-industrial complex after the Cold War. The Neocons were the worst expression of this, but President Clinton also had much to do with it. Leaving these gigantic structures in place set up a political competition to control the resources of the federal government in recruitment of constituencies in support of politicians and parties. Notice in particular that the so-called liberalization of the banking system also took place under Clinton. The feeding of special interests has been endemic, and the people have suffered in consequence. Is it any wonder that we have growing inequalities over decades and growing divisiveness?

To put the blame for this on the constitution instead of the politicians evidences some considerable neglect of American history and ideals. What the founders feared most, as the enemy of republican government, is exactly what we now have: factionalism. To add another rhetorical log to the burning conflicts rarely helps. What is needed is detailed analysis and correctives.

Regarding Judge Gorsuch, you might prefer to hear his own words--at the Federalist Society:

https://www.youtube.com/watch?v=VI_c-5S4S6Y

This runs about 28 Min. I thought it worth some attention. 

H.G. Callaway

I see legislation by judicial fiat is the third option used by political progressives.  

The first option is the standard elective process.  When legislatures won't consider - or vote down the progressive ideals/goals, we then move to the next option.  The second option is the state-wide referendum/plebiscite.  When this doesn't get the desired result, they then move to the judicial system - to either prevent something that they disagree with getting implemented, or to enforce something that can't be successfully implemented via options 1 & 2.

The state of California is a microcosm.  State wide "propositions" have been part of the constitutional process for > 100 yrs.  These can be put on the ballot either by the legislature (taking the chicken way out of having to make a decision) or brought forward by enough signatures.  These propositions can be used to amend/alter the California state Constitution - yet when a vote on a proposition doesn't go the way that the political progressives wish, their first stop is the courts to suspend a constitutionally  voted upon amendment as 'unconstitutional'.  There have been many over the years that have fallen to the wayside because of this third option - Prop 189 and Prop 8 - to name just two.

Democracy cannot be trusted when it doesn't get the results that political progressives believe is correct.  I have always thought it was amazing to see how many times a ballot initiative is voted upon, until such time that it passes - and then questioning whether there will be another vote is frowned upon because the issue is now "settled".  Ask yourself, why wasn't it "settled" any of the previous times it was voted upon.

Mainz, Germany

Dear Heyman & readers, 

The worst of the progressives' politics requires scapegoats. There has to be an "evil other" to organize and focus the foot soldiers against--always working for high purposes which are not to be doubted, questioned or examined too closely. The regular assumption is that the leaders already have all the answers, so nothing really needs to be debated or examined. If the right policy is defeated, then the same thing is to be put through by other means. The strategy is not to debate opposition and decide on that basis what it might be best to do, instead the strategy is to get the opposition out of the way by hook or by crook or by any feasible means. 

It is worth reflecting on what actually happened in the progressive era at the start of the 20th century. After many progressive reforms and strengthening of the federal government, we got the triumph of President Wilson, and following the first World War, we had a decade of the go-go, "roaring 20's" culminating in a grand run-up of the stock markets and, of course, the great depression. In effect, progressivism culminated in excesses of corporatism. Grounds to suspect that alliance between progressivism, as in the Clintonite Democrats and neo-liberalism, is a somewhat questionable combination.  

Though the Clintonite Democrats were soundly defeated in the last election, and even undercut by Senator Sanders within the party, they never say die, and keep plotting a come-back. This is only plausible, I surmise, because their financial and crony support has few alternatives available. Elections don't defeat them because their actual, effective support is not primarily from the electorate, IMHO. 

Its always one thing hiding behind another. The academic word for this is dissimulation. To get what you want, first appear to be what you are not--its a way of disguising motives and supporting connections. 

H.G. Callaway

The problem with Washington is that those in power are ready to accept scapegoats that cannot adequately defend themselves as surrogates for the real culprits.

Mainz, Germany

Dear Green, 

If you will look back a bit, I think you will find that the immediate prior exchange concerned California and progressivism --not anything about Washington specifically. 

I wonder, though, whether you think of those hiding their convictions or hiding in a crowd as people who cannot adequately defend themselves. That may be an important determinant of how you perceive the course and development of various discussions. 

It is one thing to follow the course of arguments and evidence, quite another thing to merely follow the press of political enthusiasms. I suspect you'll agree. Right?

H.G. Callaway 

H.G.,

Re. California and progressivism: My apologies, but being away from the discussion, I was commenting on a prior statement.

Pertaining to Trump's knowledge of Russian involvement, etc. My comment was alluding to the fact that there have been many times throughout American history, Iran-Contra is one that comes readily to mind, when it was strongly suspected that the President, a powerful politician, or a CEO committed a crime, but it could not be proven. In many of these cases some lackey volunteered or more likely was thrust forward to take the blame and give the appearance that justice was served. I think Gov. Christie and the Fort Lee bridge access closure possibly is another such occurrence.

I do not subscribe to a conspiracy under every rock. In the business world and political arena those smart enough to play the power game usually have the wherewithal to cover themselves. You misunderstand me, those that can not adequate defend themselves or "give themselves to the greater cause" are those underlings who did not build adequate alibis and take the fall for their boss. I personally know several corporate CEOs and VPs who are rather ineffective leaders, but rose to their positions by being able blame others when things went wrong.

Philadelphia, PA

Dear Green,

Thanks for your further explanation. In this case, it seems to me, it is particularly important to distinguish between the descriptive and the normative--as I see you do just above.

No doubt, lots of funny business goes on and has gone on, but in spite of prevalence, it does not represent a precedent and model --for further such behavior of payback. I thought to emphasize that kind of distinction. 

I doubt that all this speculation about foreign involvement in the election will come to much of anything in the end. We all know there is a lot of misleading or deceptive material on the internet, and there is also reason to think that some of it is intentional. People and countries, too, are using the internet to advance their aims. I think this has long been known. In addition, there is much speculation on the internet and in the media. In such an environment it is crucial to keep to the more reputable sources and to sharply distinguish between speculation and genuine evidence. 

H.G. Callaway

Philadelphia, PA

Dear all,

Readers of this thread may find the following question of interest:

https://www.researchgate.net/post/What_is_the_significance_of_Wittgensteins_private_language_argument

H.G. Callaway

H.G.,

I highly doubt that the Russian investigation would lead to another election, but one can never tell. While I agree that there is a massive amount of misinformation on the internet and social media spreads lies and misinformation about all of the candidates, I am more concerned about whether there is any evidence of a concerted collaborative effort by the Trump campaign and the Russians (including the hacking) to flood social media with fake news in order to shift the voters away from Clinton.

I saw a demonstration on 60-Minutes about how easy it is to buy 5000 bots from Russia for a few hundred dollars and program them to boost one's social media account and make it seem like you are super popular. This causes a cascade effect because the bot-produced popularity convinces mainstream America that you must know what you are talking about and it must be true. These bots also can be used directly to spread fake information like wildfire.

While nobody can say exactly how all of this affected the election, it seems clear that the Russians and WikiLeaks tried. If it is found that the Trump campaign colluded with those parties to do that, then I do think that there needs to be severe consequences, including impeachment if Trump knew what was going on. My opinion, of course.

JAG

PS. With court challenges on any evidence likely, this could go on for years.

Barry Turner's question "Is the courtroom the forum for political progressiveness?" and the associated discussion is a Crown jewel (perhaps a republican trophy) of Research Gate.

While I am entering the discussion rather late, Judge Neil Gorsuch's February 7, 2005 article in the National Review, which inspires the discussion, is considerably more remote in time than this particular discussion about it. In any case, Barry's question is almost timeless. I see no reason why discussion on the topic should not continue. As a fan of formalism in the textualist sense, I would answer the question in the negative.

James Green's most recent contribution raises a related question, namely: "Is the electorate the forum for technological progressiveness?" After all, the FSB and SVR might have "hacked" American voters by using social media bots to misrepresent the extent of the present President's electoral popularity, thereby influencing their voting behavior. Should the electoral result therefore now be disallowed? Such a step would be futile - not so much because secret services inevitably interfere in political and legal processes, but simply because technology does impinge upon the electorate.

Now, as ever, human beings must be (or otherwise become) conscious of the forces that seek to manipulate our minds. That is true in all spheres of life - including in processes of government.

Thank you Michael!

What he did as a kid was bad....but he was 17. The biggest problem is that he is now lying about it. And, he is subscribing to crazy conspiracy theories ("Revenge of the Clintons"). His performance showed he is basically unstable. Also notice how he lawerly never answered a question. All of his responses were "I got all A's and I'm a nice guy" so that he couldn't be caught lying under oath. The republicans should look for a real conservative, not a sleaze with baggage and delusions.

قاعة المحاكم لابد أن تكون موقعا لاحقاً الحق وترسيخ مبدأ العدالة ولابد أن تكون بمنأى عن أية تأثيرات سياسية أو اجتماعية استنادا إلى مبدأ استقلال القضاء

كنت اتمنى الاجابة

The courts must be depended upon any political parties in the country

يجب أن لا تكون كذلك