After several painful hours watching the committee proceedings for Amy Barrett, I think the case has been made. FOUR MORE JUSTICES, regardless of what Biden wants!
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A Commentary on the Passing Scene by Robert Paul Wolff rwolff@afroam.umass.edu
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The following books by Robert Paul Wolff are available on Amazon.com as e-books: KANT'S THEORY OF MENTAL ACTIVITY, THE AUTONOMY OF REASON, UNDERSTANDING MARX, UNDERSTANDING RAWLS, THE POVERTY OF LIBERALISM, A LIFE IN THE ACADEMY, MONEYBAGS MUST BE SO LUCKY, AN INTRODUCTION TO THE USE OF FORMAL METHODS IN POLITICAL PHILOSOPHY.
Now Available: Volumes I, II, III, and IV of the Collected Published and Unpublished Papers.
Now Available: Volumes I, II, III, and IV of the Collected Published and Unpublished Papers.
NOW AVAILABLE ON YOUTUBE: LECTURES ON KANT'S CRITIQUE OF PURE REASON. To view the lectures, go to YouTube and search for "Robert Paul Wolff Kant." There they will be.
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14 comments:
I watched most of the hearing and have these observations:
Senator Feinstein, as usual, was terrible in her questioning, not making effective follow-up questions to pinpoint how J. Barrett was being evasive. For example, the 7th Circuit had a case involving allegations of deliberate racism by a company, Autozone, which was assigning workers to work locations based on their race. The employer justified its admitted work assignments based on a “separate but equal” defense, the defense rejected by the S. Ct. in Brown v Topeka Bd. of Ed. Yet, a three-judge pane voted to 2 to 1 that the practice did not violate Title VII. Barrett was not on that pane. But he dissenting judge requested a vote by the entire 7th Circuit to grant en ban review. Barrett voted to deny en banc review. When Feinstein asked her why she voted to deny en banc review, she gave a lame excuse comparing a request to grant en banc review to a request to the S. Ct. for certiorari review, as if it is no big deal. But if the practice was based on racism, which it patently was, why would you not vote for en banc review. Two other judges voted to grant en banc review, so why didn’t she? The fact that she and her husband have adopted two black children does not excuse her failure to not oppose a racist work policy.
During questioning by Sen. Durbin, who I thought did a great job, she tried to explain her dissent in a 2nd Amendment case in which she dissented from the majority opinion regarding the constitutionality of a Wisconsin law that prohibited the sale of firearms to any felon. The case involved a felon who had been convicted of fraud in misrepresenting a medical product to elderly people. Barrett argued that since the crime he was convicted of was not a violent crime, he should not have been denied his 2nd Amendment rights. When Durbin asked her about J. Scalia’s decision in Heller v. D.C., in which Scalia made clear that the majority were not holding that the right to bear arms was absolute, and that states could impose restrictions on the right, Barrett claimed that that language in the decision was dicta, meaning that that particular language was just a side note. Bullshit. The language was expressly intended to define the parameters of the right to bear arms, and the Wisconsin statute prohibiting the sale of firearms to felons was precisely the kind of limitation Scalia was referring to as being permissible.
Then one of the Republican senators (I think it was Sasse) asked if it is appropriate for a judge to consider statements made by the person who introduces a piece of legislation for debate in evaluating what the language of the statute means. Barrett claimed that it was never appropriate – a position which her mentor J. Scalia maintained. Again, bullshit. There had been numerous Supreme Court decisions in which the Justices look at the what was said during the legislative debates in order to determine what the legislators meant when the language of the statute is ambiguous or vague. Without looking at what the legislators said about the legislation they were considering, its meaning would remain indeterminable.
I thought that Senators Whitehouse (superb), Klobuchar and Coons were outstanding. The Republicans were just infuriating and misleading. (I have to go back to looking at Citizens United to see if there was any truth in Sen. Cruz’s claim that the dissent supported banning books.)
In light of Judge Barrett’s confirmation hearing, I would like to make a few observations regarding the conservative judicial philosophies of originalism and textualism, espoused by J. Scalia, and adopted by his acolyte Amy Coney Barrett. Originalism maintains that in interpreting the Constitution we should interpret the words of the Constitution in a manner consistent with what the words meant when the Constitution was adopted. As I indicated in a prior comment, for J. Scalia that meant interpreting the use of the word “militia” in the 2nd Amendment to limit the kinds of weapons ownership of which is protected by the Amendment to the kinds of weapons that were used in the 18th century. Even here, however, Scalia fudges a bit, sine he held in Heller that the personal ownership of handguns is protected by the 2nd Amendment. Handguns did not exist in 1789.
A textualist maintains that in interpreting the Constitution and statutes, we should stick to interpreting the words that were actually used, and not interpolate. The problem with this is that the doctrine assumes that words have precise, delineated meanings. What exactly are the parameters of “cruel and unusual punishment” prohibited in the 8th Amendment. We might all agree that physical castration is a cruel and unusual punishment, but what about chemical castration, which some judges have ordered be used on pedophiles. What about life imprisonment for a minor who commits an egregious crime?
The textualists ignore the fact that J. Marshall himself failed to adhere to the doctrine when he ruled in Marbury v. Madison that the Supreme Court had the right to engage in judicial review, passing on the constitutionality of statutes enacted by Congress. This doctrine has been accepted as standard since Marbury was decided, but it is not explicitly expressed in the Constitution. J. Marshall simply reasoned that it is part and parcel of what it means to be a Supreme Court, since it is the function of the Supreme Court to interpret the laws, including the supreme law of the land, the Constitution. The analysis makes eminent sense, even thought it does not appear in the Constitution. But if you treat the Constitution from a Euclidean perspective, then its provisions constitute axioms and postulates, from which broader theorems can be deduced, like that the provision in the 4th Amendment that “The right of the people to be secure in their persons ... against unreasonable searches and seizures shall not be violated” entails a right of privacy, which protects my right to use prophylactics and a woman’s right to decide, in consultation with her physician, whether to abort a fetus.
Those justices who reject orginalism and textualism point out that such strictures prevent the Constitution from adapting to the evolution in our society of new technologies and new progressive attitudes. The originalists argue that allowing such adaptation defeats the purpose of having a Constitution, which is supposed to be unalterable, except by the Amendment process that is specified in the Constitution. The liberal justices point out that then we are limited to those attitudes regarding rights that existed in the 18th century. The possibility of cloning individuals was inconceivable in the 18th century. Does that mean that a state law which prohibited cloning must automatically be deemed constitutional?
(Continued)
Kurt Gödel proved that within any given axiomatic system there are propositions which can be expressed within the system the truth of which can neither be proved nor disproved – the system is incomplete. This in turn entails that there are propositions which are true, but which cannot be proved within the system. Could this also be true of the Constitution? Are there propositions which are true, but which a textualist would not be able to find within the words of the Constitution, nor derive by making inferences from its provisions? In an earlier comment, I asked whether a state could pass a law which prohibited the citizens of that state from dying their hair green. The textualist would argue that the Constitution says nothing about this. But would we not know that the proposition is true? That the concept of liberty protected in the 5th and 14th Amendments must mean that people have the right to dye their hair any color they wish without the intrusion of government? By the same token, when we are not dealing with the government, but with a private employer, does not the private employer have the right to issue a directive that any employee who shows up for work with green hair is automatically fired? But the textualist would argue, as J. Scalia did argue in his dissent in Obergefell v. Hodges, that the right of individuals of the same gender to marry is not found anywhere in the Constitution, and to find such a right in the Constitution distorts the historical meaning of the word “marriage.” But why would the right of people of the same gender to take an enforceable oath of marriage be different from the right to dye one’s hair green, when neither action harms others?
If there are truths embodied in the Constitution which cannot be proved to exist using the axioms and postulates of the Constitution, how would we be able to recognize them, and who decides? I believe that the right of an individual who is suffering from an incurable disease, which requires the use of high doses of drugs to relieve the pain, leaving the individual in the state of a living corpse, has a constitutional right, like the right to color one’s hair green, to request the assistance of a physician in ending his/her life, without the physician being subjected to criminal prosecution. The Supreme Court has disagreed. But does not such a right derive from the concept of liberty, with which government may not interfere, when my request to die harms no one else? A Justice Barrett would surely disagree, as she will probably disagree with many other rights which prior Supreme Court decisions have granted us. (Would she disagree that a state could not pass a law prohibiting citizens from dying their hair green, and if she would agree, on what basis?)
Throughout the hearings, the Republican senators have repeatedly said that it is not the function of the Supreme Court to make policy, that that is the function of the legislature, and when the Court does it, they are unconstitutionally legislating from the bench. The repeated use of the word “policy” is just another way of saying, “We are a nation of laws, not of men,” but laws, and especially the supreme law, the Constitution, are composed of words, and interpreting words, as I have argued above, allows for differences of opinion, so that my opinion an adversary would claim is making policy, and his/her “textualist” opinion is not policy, but the law. All nonsense and double-talk. And I suspect we will be hearing a lot of it from Judge Amy Coney Barrett.
In the twilight of my legal career, I am witnessing the sorry dismantling of the Supreme Court.
“We lawyers in our youth begin in gladness; thereof comes in the end despondency and madness.” (Wordsworth)
Since Godel has cropped up again I thought to look into the old story, that Godel had found a flaw in the US Constitution and that he wanted to bring it up with the judge when he was seeking naturalisation, and came upon this Memorandum written by Morgenstern
https://drive.google.com/file/d/0B9_mR_M2zOc4Y2VhNzZkMDQtMDdlNC00YWQ0LWJlYzQtMzAxZjAxMGYxNzM5/view
from p. 2 of the memorandum:
“Now came an interesting development. He rather excitedly told me that in looking at the Constitution, to his distress, he had found some inner contradictions and that he could show how in a perfectly legal manner it would be possible for somebody to become a dictator and set up a Fascist regime, never intended by those who drew up the Constitution. I told him that it was most unlikely that such events would ever occur, even assuming that he was right, which I doubted. But he was persistent and so we had many talks about this particular point. I tried to persuade him that he should avoid bringing up this particular point before the court in Trenton, and I also told Einstein about it: he was horrified that such an idea had occurred to Godel. and he also told him he should not worry about these things nor discuss the matter.”
For further discussion of the “legend” see
https://jeffreykegler.github.io/personal/morgenstern.html
Rebecca Goldstein relates the same story in her book “Incompleteness.”
We are way beyond just adding a few Justices which merely sounds like payback and leaves a too easy further bite. The discussion needs to be about major judicial reform.
More district court judges, at least 15 Appeals districts with judges added to 1 - 13, and 15 - 19 Justices (with the passing of Ginsburg, 17 - 19 preferred).
So, can a party in power really "pack" the court? Yes, in theory. If Democrats seize control of the White House and Congress, in 2021 Schumer could present legislation to add justices, the Democratic-controlled Congress could pass it, and a President Biden could sign it into law. But no past effort to pack the court has ever proven successful. The most famous example is when Democratic President Franklin D. Roosevelt .. well, in short, It was a massive political defeat for the popular president in what many deemed a power grab. So, legal process is not the hurdle here maybe.Whatever you think of the politics. Thinking of the politics also doesn't entail thinking of the efficiency and quality of the court's work,given a simple truth of organization that after a certain point, adding more members to a committee doesn't get its deliberations to work more smoothly. Though I guess that credibility and public legitimacy is the real nightmare to consider, here -- the "R" or the "D" after a judge's name will inevitably loom larger in the kind of results expected, I guess? Parachuting in multiple justices selected precisely for their willingness to deliver the goods on high-profile issues would all but guarantee sudden lurches in the law, and when you consider it, if the other side began plotting its own counter-pack up to 15 or 19 -- or whatever the number is to be after the next round -- then it could lead to repeated big lurches back and forth over time.
'The textualists ignore the fact that J. Marshall himself failed to adhere to the doctrine when he ruled in Marbury v. Madison that the Supreme Court had the right to engage in judicial review, passing on the constitutionality of statutes enacted by Congress. This doctrine has been accepted as standard since Marbury was decided, but it is not explicitly expressed in the Constitution.'
Of course this is not true that 'The textualists ignore the fact', what is worse is that it is obviously not even plausible to suppose for a moment that textualists are ignoring a central text for understanding the role of the Courts to interpret law in light of the Constitution, that is the centerpiece of many constitutional law classes.
Anyways, the landmark confirmed the legal principle of judicial review. How? Well, in his opinion, Chief Justice John Marshall relied almost exclusively on the specific language of the Constitution, saying that it was the “paramount law of the nation” and that it constrained the actions of all three branches of the national government.
Note also -- judicial review was seldom exercised prior to the 20th century -- and we're talking about Marbury v. Madison (1803). It was beginning in the early 20th Century, when the Court began striking down federal laws more frequently, that proponents of judicial review pointed to Chief Justice John Marshall’s decision in Marbury as a source supporting the view that the Supreme Court has the final say on what the Constitution means.
I can quote this as not being actual words from the Constitution, perhaps:
“The powers of the Legislature are defined and limited; and [so] that those limits may not be mistaken or forgotten, the Constitution is written.
But, it's an assertion about what the whole point of a written Constitution is. Marshall also asserted that the courts had the responsibility to understand and articulate what the Constitution means, and the decision concluded “a law repugnant to the Constitution is void, and courts, as well as other departments, are bound by that instrument.”
Danny,
Sorry, I don’t agree with you re Marbury v. Madison. It is almost universally recognized that J. Marshall invented the concept of judicial review by the Supreme Court of acts passed by Congress.. The fact that the Supreme Court is the paramount court in the country does not expressly mean or state that it has the authority to rule that a Congressional act is unconstitutional. This was a matter of inference by J. Marshall, and had he been a strict textualist, the way J. Scalia and soon to be J. Barrett claim[ed] to be, it would not exist – the same way that J. Scalia maintained that the 4th Amendment does not include a right to privacy, but for J. Douglas’ inference in Griswold v. Connecticut, it too would not exist, and nor, therefore, would Roe v. Wade.
Enam el Brux,
Why did you remove your comment stating I should be cautious about trying to apply Gödel’s Incompleteness Proof to the Constitution? It was a valid point. The Constitution is not, strictly speaking, an axiomatic system comparable to Peano arithnatic . My basic point is that there are elementary truths about individual liberty that we would all agree exist, such as a state cannot constitutionally pass a law prohibiting its citizens to dye their hair green. Why not? There is nothing about dying one’s hair green in the Constitution, so why couldn’t a state do it? Would a textualist claim that since it is not expressly prohibited, it is permissible? Watching J. Barrett’s confirmation hearing, I wished that one of the Democratic senators had asked her, “Judge, could a state pass a statute prohibiting its citizens from dying their hair green?” How would she react? Would she look querurously at the senator and ask, “What the hell are you talking about?”
Expand the Court, then the next time Republicans are in control they'll expand the Court, on and on until we're all Supreme Court justices. The only reason to expand the Court is if you oppose the Constitution so much that you would prefer the executive and legislative branches to be the supreme law of the land. There's no way that could ever come back to bite us in the ass!
BTW, I'm reading your Kant book and admire it thus far.
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