Want to watch a puppy skinned alive, the scalpel running torturously around each muscle and joint as a mic records the little creature’s excruciating screams and desperate begging whimpers, and the camera focuses in on the terror and agony in its eyes? The Supreme Court ruled today in U.S. v. Stevens that you have a right to do so — and businesses are free to develop an industry producing recordings like this. Here is my take on this decision:
First, it shows how essentially conservative the Court is. Ever since Darwin, at least, the lines between people and animals has been blurring. This has accelerated in recent years as science has convincingly shown that many animals can suffer much like people — dogs, as just one example, have nervous systems that allow them to feel pain much as we do, and for similar evolutionary purposes — and that our own welfare is directly connected to their well being — environments that are lethal for animals are also harmful to people … how we treat animals is a canary, as it were, in the coal mine of our society. This decision, which draws a bright ethical line between people and animals, is a throwback to earlier codes that asserted no fundamental connection between man and beast. It is not surprising that the unelected branch whose occupants serve for life is the only one that can’t see both justice and necessity in prohibition of animal torture films: it’s a relatively new concept.
Second, it is legally disingenuous. On the one hand, to simplify but not distort, Chief Justice Roberts wrote that, “The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.” On the other hand, similarly stripped of rhetorical and argumentative flourishes, he wrote that obscene, defamatory, fraudulent, and criminal speech can be restricted. Oops. Maybe it does have some power after all. The question is just what box five justices want to put animal torture films into.
What this decision shows is the dangerous power we have allowed to fall into the clutches of the Court. At a whim, five individuals can decide whatever they want and it becomes the law of the land: George Bush is President. Or maybe Al Gore. Abortion is legal. Or maybe not. Slowly skinning a puppy alive is protected speech. Or it is obscene. Many of the founders believed emphatically that judicial review, the process by which the Court can overturn a law made by the elected representatives of the people, was a despotism never intended by the constitution. It was only rarely exercised for most of the country’s history — once, arguably, in 1803; not again until 1856 (to defend slavery); and only with great frequency in the 20th century. Today’s decision, among many others, supports the idea that the people acting through their representatives, not five individuals answering only to their own personal interests, are the best defenders of the constitution. Judicial review once a century, if at all, is more than enough.
to threaten to pack the courts and see if some of those extreme righties will resign — and if they don’t, to actually pack them. There is no reason on Earth to continue to allow this court to not only slow this country down, but bring it back to the stone age. FDR had it right.
Especially if you are a puppy being slowly skinned alive so someone can make a few bucks selling the clips online to teenagers — just back from the local gun and knife show — who live, let’s say, in your neighborhood.
I don’t think the Supreme Court voted “in favor of puppy torture films” and you know it. An 8-1 vote with Alito the dissent? Think some Clinton and Obama appointees were part of that 8.
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p>More a case of crap law that needs to be redrafted; think it is a stretch to characterize the decision or those in favor of the outcome as sadists. More from your link:
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p>Before this devolves into a diatribe against animal cruelty (who exactly is in favor of that anyway?), might be better served to figure out why the law was overturned. Not because the SC is a den of dogfight supporters, but because the original law was poorly drafted.
The result of this decision is to affirmatively permit the conduct I described. A different decision that showed deference to the will of the people as expressed through their representatives — which is the larger point of my post — would have made production and distribution of such films illegal. I take no position on whether the justices watch crush films in their spare time or not, just about the consequences of their decision.
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p>As to your point about drafting, I think that had about as much to do with the decision as a butterfly in China flapping its wings: not much. The justices could have written the decision in such a way that they sandboxed the language of the statute if they wanted to do it.
The justices could have written the decision in such a way that they sandboxed the language of the statute if they wanted to do it.
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p>Nonsense.
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p>The justices can’t rewrite the law. And frankly, this law was crap; even I, with my tyro’s grasp of Constitutional law gleaned from two courses covering health care law and public health law respectively, could see this. It was grievously overbroad; it banned way more than the crush videos it was intended to address, and the SC basically said so. I doubt anyone sitting on the court (much less all 8 justices voting to overturn) are fans of crush videos or skinning puppies. They are, however, fans of properly drawn law, and they recognized that this one was not.
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p>And as far as “sandboxing the language”, that’s exactly the kind of “judicial activism” which they may not engage in. Furthermore, if you read the opinion, they note at some length how the law ought to be redrawn by the Congress (the branch whose job it is to draw up law). They point at the extensive body of settled case law on child pornography (arguably a similar issue) and recommended taking some pages from those books and applying them here.
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p>But the law they struck down deserved to be struck down; it made illegal a whole bunch of behaviour not intended by the authors on a plain reading. Restrictions on speech need to be narrowly drawn, to prohibit only the speech which ought to be restricted, and not a whole bunch of other speech which is protected. To rely on the forbearance of government is idiocy. (Best line in the decision: “Despite the Government’s assurance that it will apply §48 to reach only “extreme” cruelty, this Court will not uphold an unconstitutional statute merely because the Government promises to use it responsibly”).
This is a law that was passed by the elected representatives of over 300 million people in accordance with a constitution they are sworn to protect. It really is extraordinary that you can blithely assert that it was “crap.” I agree that it may not meet some standard of First Amendment jurisprudence as defined by the Court, but my point is: that should not be the determinative standard. As a matter of principle — though not, I concede, of practice! — the Court has no more basis to define what is and is not constitutional than any other branch of government … and arguably less, in my opinion, since it is not elected.
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p>My statement above about making the Court more democratically accountable was not a call for judicial elections, although certainly that is an intriguing possibility. Term limits, which David supports, is an alternative. An amendment explicitly to forbid judicial review is another (maybe it could be introduced at the constitutional convention Prof. Lessig wants to call). There are lots.
Think about the NFL: nowadays, if the play is close, the officials let them play. For example, if the ball carrier is tip-toeing up the line, the officials keep the game playing until he is unquestionably out of bounds.
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p>This is substantially different from 20 years ago. 20 years ago, if the official with a view thought the player was out of bounds, he’d blow the whistle — even if he wasn’t 100% certain.
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p>NFL fans can unquestionably see the change to a ‘let them play, then review’ officiating style. Why the change? The officials know that they can “get it wrong” by not making the call, because the instant replay will correct it. If they blow the whistle prematurely, there’s no fix for that mistake.
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p>So Congress and the POTUS feel more comfortable passing and signing legislation which flirts with the line of Constitutional/Unconstitutional, because there’s another review board — the instant replay SCOTUS. Without SCOTUS, there’s no telling if Congress or the POTUS would have signed the bill, just like there’s no telling if an official would have blown the whistle had instant replay not existed in the NFL.
This is really a very extreme point of view.
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p>Eliminate judicial review because you don’t like how it played out this time? Are you willing to throw out Roe v. Wade as well?
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p>SCOTUS is in no better position to determine Constitutionality than our elected officials? That idea quite frankly scares me. The Constitution exists to set limits on our elected officials. Forget the instant replay analogy (good analogy by the way) this would be like saying “I don’t see how the referees have any more basis to determine the rules of the game than the actual players. After all the players actually play.
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p>Furthermore, one of the important roles SCOTUS and the Constitution play is to protect the rights of the minority over the tyranny of the majority. Surely no body elected by 300 million people would ever democratically trample the rights of groups it didn’t like right?
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p>The assertion that we can trust that the Congress passed a good law just because that is their job and they were elected to do it is also puzzling. How do you feel about the PATRIOT Act?
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p>If the plain language of the legislation would outlaw hunting videos sold in DC where hunting is illegal and most likely outlaw anti-animal cruelty videos produced by SPCA then yes, I think the law is poorly drafted and unconstitutional and I am really glad that the SCOTUS exists to say “no you can’t do that.” If the law is necessarry (which it most likely is) then the Congress can and should fix it.
Yes we need a new Supreme Court. Maybe a Supreme Court with human beings on it. That would be good.
If it’s legal to skin puppies alive, why shouldn’t it be legal to videotape it? The government is free to prohibit torturing/killing any animal it wants. That’s a separate issue from the taping. This doesn’t make a case against judicial review at all; it makes a case that the elected branches need to prohibit animal cruelty. And if someone makes a video; all the better. Then you have evidence to prosecute them with.
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p>The Supreme Court supported desegregation before the country’s elected leaders did. It’s also stood up for individual rights in plenty of situations where politicians would cave to the majority and crush them.
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p>The tyrannical nature of the current majority on the SCOTUS is a risk you have in any form of government. The appropriate way to deal with it is to pack the Court, and to ensure that Presidents who will nominate better Justices and Senators who will approve them get elected/re-elected.
intent matters. As the justices pointed out, where does this place a movie containing a Hemingway bullfight, for example? And, though maybe not part of this ruling, what about a super realistic computer generated crush video or dog fight — is that legal? AFAIK, it’s still illegal when it’s kiddie porn, for example.
Animal Protection Act:
I am told Swedish law does not carry any force in the US, for some reason. Still, all US states have animal-cruelty laws. Here’s a summary of the Massachusetts law. You can find other states’ laws here.
And the law is: avoid them.
I LIKE Swedish meatballs, thank you very much!:)
This case involves “The filming of the cruel acts.”
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p>I suppose that this decision defends the legality of “the filming.”
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p>But you have to remember, “the filming” is also EVIDENCE of “the cruel acts”, which are illegal under the state laws.
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p>Going after the sickos who do this, using the film as evidence, would be a SLAM DUNK for any prosecutor.
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p>Juries, and 99.75% of the public, are sickened by this, and want to punish the perpetrators SEVERELY. And they could easily do this with the film as positive proof of sick sadism.
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p>People also wonder if such individuals are about to “graduate” to becoming mass murderers. Many mass murderers have a history of sadism towards animals.
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p>Large businesses are not going to get involved in this. In business, you need a public image that does not make people want to skin YOU alive to get any sort of customers. Getting involved in this is a good way to be run out of town.
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p>Going after these sickos for doing “the cruel acts” but not the filming, under state laws, will give these sickos what they deserve under the existing legal structures.
This idea sounds good unless the video was filmed in a foreign country.
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p>But I agree, if skinning animals alive isn’t yet illegal, make it so now.
So it’s legal to be sick in the head but if you associate that with sex it becomes protected?
But if PEOPLE attend a political talk on EITHER side and piss on their respective dogma you get arrested.
And yes, I say this as a former adoptions director of an animal shelter, a vegetarian, and as a “parent” of enough felines that some think I’m in Crazy Cat Lady territory. A horrid result? Yes. Was the reasoning right? Yes.
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p>The majority opinion — which WAS 8-1 — was careful to say that it wasn’t the purpose of the law it opposed, but what it found to be over-broad language. A depiction of cruelty was defined as one in which “a living animal is intentionally maimed, mutilated, tortured, wounded or killed.” That would include the kind of hunting or fishing shows which are routinely shown on ESPN and Versus. Further, the Court found NO incident of prosecution being brought against the maker of a crush video — the party here made a dog fighting video, which is certainly sick, but not made for prurient sexual purposes. The message to Congress was clear — narrow and sharpen the language and we might not say no next time.
This isn’t about “how we treat animals.” From SCOTUSblog:
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p>This is about speech, not about whether actual animal cruelty is legal or not.
You certainly responded with your emotions instead of your head on this one. While I am uncomfortable with the decision in many respects, I think you have to look at the facts of the case and the actual decisions. When most of the extreme rightists on the court (except Alito), the leftists, and the few moderates can get together and agree on something that means this is an atypical majority decision and this has to be a pretty crappy law. The law as it stood in this particular case actually sent the defendant to jail for a period longer than the sentencing of Michael Vick, it also punished an act of speech, one we would all find horribly offensive but an act of speech all the same, while the actual act it was filming is not considered criminal in all states. So the SCOTUS is simply telling the legislators to go back to the drawing board and craft a better law. One that would ban the actual actions as criminal and thus criminalize the filming of said actions since it makes the person filming it an accessory. That would be the way to go.
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p>Additionally I completely disagree with the notion that the SCOTUS should always follow the will of the people. The founders intended the court to be above politics and to make decisions regarding the interpretation of the Constitution. In many respects the court did this throughout its history. It challenged the incredibly popular Jackson administration in an attempt to protect the rights of American citizens being displaced due to their Cherokee heritage. It protected the rights of blacks when the majority of the country would not have done so. It moderated the New Deal, it has bound the hands of wartime Presidents forcing them to still respect the constitution, and sure we can name a handful of bad decisions the court has made from Dred Scott to Plessy to Karematsu all the way up to Citizens United, but the court at its best acts as a defender of minority rights against the oppression of the majority something it could not do if we packed it, or otherwise altered it from the way the founders intended it to operate. This is a democratic republic not a democracy and for a very good reason.
I doubt very much abortion opponents would agree that the Court has done much to protect their minority rights, as just one example. There is a long literature on this, and the theory that the Court acts as a defender of minority rights is much beloved by some law professors who, coincidentally no doubt, earn their living within the legal system. In general, however, my observation is that the Court and the law in general supports the Powers that Be. It is hardly a beacon for the oppressed or, in this case, small furry animals being recorded on video as they are tortured to death.
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p>I agree we were not founded as a democracy: women and slaves couldn’t vote, and Senators were indirectly elected. But we have moved in a progressive direction: slavery has been abolished, women can vote, Senators are directly elected. The Supreme Court, however, is a hold out: it should be brought into the modern age and made more democratically accountable.
Bob,
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p>I respect you a great deal, and it pains me to say this: What the hell are you smoking?!
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p>There needs to be at least one institution which is not beholden to the whims of the crowd. As much as I respect democratic process, I also respect the rule of law. We’ve seen what we get with an elected judiciary in West Virginia: we get this – a judge who receives an enormous contribution from Massey Energy (where have we heard their name recently?) and then turns around and, surprise! rules in their favor in a big case.
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p>Now I admit I haven’t reviewed that case; it is possible Massey should prevail on the facts and the law. But it smelled pretty bad, and it isn’t inconceivable to me that other cases are as smelly, or worse.
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p>Appointed justices for the win. Sometimes you get courts like this, and often you don’t. I agree that the court we have now is packed with conservatives, and I’m not any happier about it than you are, but electing judges is emphatically not the answer.
Not to mention judges that brag about how many people they sent to death row, their conviction rate, or how many ten commandments monuments they put up in their courthouse. Frankly when it comes to significant pieces of legal reasoning regarding the Constitution I want to leave that job to the legal professionals and not just any Tom, Dick, and Antonin. Using your logic Bob, the ‘accountable’ judiciary would never have ruled the way it did in Loving v Virginia, Brown v Board, or Lawrence v Texas for that matter. Do you want the same 2/3rds of the country that voted to ban gay marriage voting on the rights of countless other people? I certainly don’t.
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p>All the times the court failed are times when it failed to be activist and instead take into account public opinion. Not wanting to be labeled radical the court allowed anti-war opinions to be suppressed during the First World War, not wanting to be labeled un-patriotic it allowed the Japanese internment, not wanting to be labeled socialistic it overturned parts of the New Deal, not wanting to take sides in the great slavery debate it waffled and wavered and ended up alienating everyone. Not wanting to overturn anything the legislature or executive did between 1870-1930 the court failed to overturn just about any law the legislature passed since it was afraid of defying the will of the people-a will that was certainly not progressive by either today’s or even contemporary standards.
I heartily disagree with that. Citizens United, Bush v. Gore, and the entire Lochner era quickly spring to mind as examples of activism that were among the worst missteps in the history of the Court.
I don’t think a judge’s view on animal rights is a good indicator of conservatism or liberalism. As far as I can tell, the notion of legal rights for animals, either on a utilitarian theory a la Peter Singer or on some (in my mind) less persuasive theory, is pretty far out there among real-life lawyers. Which is not to say there aren’t some law school courses, journals, etc., in the field.
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p>In other words, if Stevens is wrongly decided, it isn’t because the Court failed to notice that “[e]ver since Darwin, at least, the lines between people and animals has been blurring.” But I don’t think the case was wrongly decided.
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p>TedF
with my esteemed co-editor. I can think of almost nothing I would enjoy doing less than watching any of these videos. But under existing First Amendment doctrine, this is an easy call. The statute is very badly drafted, and is absurdly overbroad. In invalidating it, the case broke little new ground, other than to say that it was not prepared to add “animal cruelty” to the decades-old list of non-protected speech (obscenity, defamation, etc.).
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p>There is no doubt a good case to be made that animal cruelty should be added to that list. But American society has for the most part declined to do so, as of yet. As just one obvious example, the vast majority of Americans eat meat, much of which comes from animals raised in horrific conditions and then slaughtered in a ghastly way. In fact, I am constrained to point out that a documentary revealing illegal practices in slaughterhouses would probably itself be illegal under this law. Examples like that are precisely why the overbreadth doctrine exists, and why it on balance probably does more good than harm.
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p>Bob’s point here:
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p>seems to me somewhat backward. What Bob is asking the Court to do is to take a giant step ahead of where society is right now – to say to the American people, in effect, “you blighted, backward sots. Can’t you see that animals are sentient beings that deserve levels of protection similar to people? You can’t? How tiresome. Well, you leave us no choice – we will make that decision for you.” That is precisely the sort of thing I’d have thought Bob would prefer to keep out of the hands of courts.
They passed the law at issue!
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p>That’s a far more accurate indicator of social standards than the views of five unelected individuals on the Supreme Court — or your personal opinion.
The only one who agrees with you is Alito. That should cause you some concern. When Scalia, Thomas, Breyer, and Stevens all think a law is clearly unconstitutional under settled law, you’re talking about a major legal overhaul to get a different result.
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p>Second, the president signed the law knowing full well it was unconstitutional. Here’s his signing statement:
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p>Of course, a narrowing construction as suggested by Clinton’s statement doesn’t rewrite an overbroad statute, which remains subject to a facial challenge. It was only a matter of time before a case like this was brought, and I’m sure Clinton knew it, but vetoing the law was not a politically palatable alternative.
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p>I suspect that Congress knew the law was unconstitutional as well, but chose not to do the hard work of drafting a proper statute and instead left it to the courts to sort things out.
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p>One of the downsides of judicial review is that it allows exactly what happened in this case to happen: the political branches pass a law knowing that it is unconstitutional, but are able to rely on the courts to sort things out down the road. It creates sort of a constitutional moral hazard that is not healthy for our system.
The fact that eight justices agreed just means the decision serves the Court’s own power, nothing more or less: the power of the Court and importance of judicial review is the only thing those eight particular human beings are ever likely to agree about. God forbid they should allow the people, acting through their representatives, to decide what is or is not obscene: that is what would be unacceptable.
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p>The signing statement, for whatever it is worth, affirms the constitutionality of the legislation and, to your earlier point, shows where society — not eight unelected lawyers — stands on this issue.
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p>You suspicions are eagerly solicited, as always, as a personal matter, but in this case I suggest we use the recorded vote in favor of this legislation by the U.S. Congress as more definitive of constitutionality. I note with admiration that in the space of just one paragraph your intuition has become a certainty of unconstitutionality. I’m still going to stick with the vote.
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p>I entirely agree that uncertainty is one of the many unhealthy aspects of judicial review — especially if you are a puppy being skinned alive in, say, China so that a videographer who specializes in providing films to disturbed people can get rich.
On your view, is it possible for an act of Congress to be unconstitutional? Clearly it is possible for a hypothetical bill to be drafted, voted on, approved by a majority of both houses and signed by the President, containing language which directly conflicts with the Constitution: establishing a state religion, say. (It’s not likely, but unless you believe the Constitution functions by magic to constrain the government to obey its principles, it’s inarguably possible.) Is this bill, then, law? It seems to me that either it is, in which case the Constitution has no substantive force and is merely a nice-sounding statement of principles; or the Constitution is, as its own text says, the supreme law of the land, and a bill contrary to it is not law.
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p>Of course, most cases are not so stark; if we agree that the Constitution is law, and a bill contrary to it is not – and that the Constitution does not function by magic – there are sure to be cases like this, where a difficult issue arises, and a determination must be made whether the bill in question is valid law. Who decides? Do you really think it’s preferable for politicians who must stand for elections every few years, and to whom various individuals and organizations give often enormous amounts of money during campaign season, to be the final judges of whether their own actions (or, depending on which party is in control of Congress at which point, the actions of their political rivals) pass Constitutional muster?
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p>Note that I make no claim that lifetime-appointment judges are, in fact, truly impartial, or that they reason solely from Constitutional principles without reference to prevailing political climates or their personal policy preferences. Of course they aren’t and of course they don’t. And I readily grant that there are a lot of problems with the current SCotUS. But I can’t perceive what sort of system you would recommend as preferable to judicial review by unelected judges, especially if you want to preserve the distinction between Constitutional and ordinary law, with the former taking precedence in case of conflict.
So when the Congress and the President passed the unconstitutional war in Iraq, or if the Congress and the President decided to ban abortion, you would find that well and good? Or a gay marriage amendment? Or to go back a few decades you would prefer that the lawfully elected executive who won in a 49 state landslide keep control of his tapes instead of that horrid unelected court? Or that this same lawfully elected executive bar a report critical of his war lest an unelected court release it? I am sorry Bob but you are opposing Marbury v Madison and the very principles of judiciary review. Without them why even have the court in the first place? The court has consistently stood to uphold the constitution as it saw it against the whims of the majority as represented by the legislature or the especially whims of the executive. Historically speaking the court has been the most active institution in limiting executive power and the best check upon it. I for one favor a liberal amount of checks and balances in my government. Your vision would essentially allow whoever won the election, even if by a small margin, to have the lay of the land for 4-8 years. That is not the country I want to live in, I had enough of it from 2000-2006.
Of course he is! That’s the whole point of the post and this whole conversation! Where have you been?
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p>People eat meat because protein is an important part of our diet. They don’t eat meat because they could care less about how animals are treated prior to and during slaughter.
I would love to see an end to factory farming. The difference between factory farming and dog fights/skinning animals alive is that one is to provide food, the other is for entertainment.
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p>This 2003 Gallup Poll finds:
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p>Yes this is an old poll, but I doubt that sentiment has changed much in the last 7 years.
Not to mention if the court stepped in because Bob was offended by animal cruelty it would set precedent to intervene when other people were offended by other things, like say depictions of gay sex, atheist billboards on buses, ads for planned parenthood, pot t-shirts in high schools, and a whole host of things. This is speech, the speech did not harm the animal in question and viewing it has no harms any rational adult could choose to avoid. Child molestation is illegal but NAMBLA is not, assisted suicide is illegal in 47 states but the Society for Euthanasia has chapters in all 50 since advocating an illegal position is different from engaging in one. Not to mention the free speech of NARAL which I am certain Bob would to defend, which was paramount in pressing the Roe case to begin with back in the day when abortion was illegal in most states. Essentially, so long as it does not defy the Millian/Holmesian principle of causing direct harm to someone else or inciting direct harm, it does not, in my view, merit censorship.
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p>Besides Bob should at least agree that the sentencing was grossly unfair and the enforcement/sentencing mechanisms of this law were bogus and deserved to be sent back to the drawing board. Perhaps this speech can be regulated to some degree, but the mechanisms this law proposed were constitutionally unsound plain and simple. And until society more fully defines what rights animals have banning this speech is certainly putting the cart before the horse.
A video containing illegal activities does not hurt anybody, regardless of whether that’s an animal being tortured, a human being tortured, or any number of other horrible things that people like to do to human beings. It is the act itself which should be illegal. If a person wants to see animals be tortured, watching a video is a perfectly harmless way to satisfy that want. Where do we draw the line? Should videos of concentration camps be banned? The Holocaust was worse than torturing dogs, but videos of the Holocaust serve an important role in letting us understand its horrible nature. And this isn’t a false analogy, since organizations like PETA or the ASPCA often releases videos of animal cruelty in order to protest its existence.
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p>Laws should be tailored so that those who provide concrete support the crimes themselves should be penalized (say, if there’s a cash flow from the seller of the tape to the dog-torturer) but just banning the tapes themselves is ridiculous.
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p>I really hope that this ruling is a canary in the coal mine. The whole idea of obscenity is very troublesome, and goes against the whole point of free speech.
The evidence is awfully thin on that point. No doubt, some of the founders thought that way — particularly when Chief Justice Marshall’s decisions went against them. But “many”? If there’s evidence of that, I haven’t seen it.
Article III of the Constitution says that the judicial power extends to all cases arising under the Constitution. Article VI says that the Constitution shall be the supreme law of the land, that all judges are bound thereby, notwithstand other laws. Therefore, if a judge must choose between what a law says and what the Constitution says, he’s bound by the Constitution to throw out the law.
They are elected, and closer to the people. The Court’s job should be to enforce the laws they make, not invalidate them.
Congress and the President are only better able to say “what the law is” than the Court if one accepts that Congress and the President have the final say. Conversely, if one accepts that the Supreme Court has the final say on “what the law is,” then obviously it’s the Court that is in the best position to make that determination.
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p>The key question is who decides who gets the final say. Chief Justice Marshall cleverly appropriated that authority to himself in Marbury, to the consternation of some. But that doesn’t mean he didn’t get it right.
…the provence and duty of the judicial department to say what the law is.”
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p>If a law were passed, for example, outlawing a certain religion, in clear violation of the free exercise clause, of course the court needs to say we’re not enforcing it.
Because, as I said above, Marshall (who wrote the Marbury opinion from which you are quoting) assumed the power to decide who gets the last word, and then — surprise!! — concluded that he did!
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p>Marshall was a brilliant politician as well as a fine lawyer. Do not forget what he was doing before he went onto the Court.
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p>The problem with most conversations of this kind is that they assume the answer to the question under discussion. You are assuming that the legislature does not have the final word over constitutionality of legislation. That is a defensible system, and it happens to be the one we have, but it is assuredly not the only possible system.
There’s a reason he is one of my favorite Chief Justices, along with Earl Warren. Even if he hadn’t made that quote I would still believe what I wrote in the rest of my comment. They don’t have the only word. After all, legislators and executives are also oath-bound to not pass or sign laws they believe in good faith to be unconstitutional. I do think that they are essentially the referees in both politics and law enforcement, and their word is and should be final on the statutes as currently written.
It is a Constitution they are propounding
I gave you Jefferson above. Madison said later in life that giving the Supreme Court the final say on what was the law of the land was never the intention of the founders. Here is another nice quotation on the subject by the great man at the Convention:
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p>Several other members of the Constitutional Convention also spoke out against the idea that the Court should have the final say on what law should be. A Council of Revision, described here with some accuracy and some mistakes by Wikipedia, as we know, that would evaluate the constitutionality of laws was considered and rejected.
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p>I’m happy to go with “several” rather than “many” if you prefer.
They are oath-bound to uphold the Constitution first and foremost. The Council of Revision you refer to was intended to review any law as it was passed. That is not the power of the Court. The Court must address an actual case or controversy brought before it. However if said case or controversy touches on enforcing an unconstitutional law, the Court is bound to set it aside.
I hate to flog a dead horse (especially since if someone films me doing it I could be arrested — HAHA!!), but you are still assuming the answer to the question under discussion.
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p>Your assumption is that the Court has the final say over what is and is not constitutional. Bob’s proposal is that Congress and the President have the final say. Under Bob’s way of doing things, the Court would never be faced with the difficulty of “enforcing an unconstitutional law,” because there in effect would be no such thing.
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p>And by the way, the Court could still invalidate state laws that violate the Constitution, which in many respects is actually more important.
This is my issue, though, with Bob’s idea, and I still haven’t really seen a substantive answer to it. If there’s no independent body with the power to rule that acts of Congress are unconstitutional and therefore void, Congress is clearly able to pass laws which directly contradict the Constitution. Bob’s argument puts him in the odd position of insisting that were Congress to pass a law, and the President to sign it, making, for example, Christianity the official religion of the country – or to pick a more likely example, banning the desecration of the American flag – that law would be by definition Constitutional, despite explicitly contradicting the Constitution. In other words, Bob’s position renders the Constitution itself void.
I think judicial review of some sort is necessary in a constitutional democracy. Historically, the biggest abuser of authority in these kinds of systems has been the legislature, not the courts, and Bob’s idea would further that problem; that’s why I don’t agree with it.
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p>As to desecrating the flag, though, I’m sure you’ll recall that the decisions were 5-4 (in quite an unusual lineup), so both the state and the federal laws very nearly survived. If the cases were brought today, they could easily come out differently. So … perhaps not the best example, though one that does bolster Bob’s critique of the whimsicality of our current system.
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p>I don’t agree that Bob’s position renders the Constitution void. It just gives us a very different system, and it’s not a system that I personally think would be an improvement.
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p>And yes – it drives me CRAZY when people use “begging the question” incorrectly! So thanks for noticing. 😀
…could have been decided differently is not really the point, though. Yes, we’re dealing with humans, so there’s no number of safeguards that’s truly guaranteed to prevent any unconstitutional law from ever getting – and remaining – on the books. After all, Dred Scott, Plessy, Santa Clara County, Buckley, Citizens United, etc. But 1) all other things being equal, more safeguards is better, and reduces the likelihood that law contradicting the Constitution will remain law; and 2) the idea that the people making the laws should also be the sole authority on whether those laws are constitutional makes me very uneasy. What is the mechanism? If Congress passes a law, is there simply no appeal? Look at Hamdi – indefinite detention of US citizens without charges and without habeas corpus is unconstitutional on its face, and it’s beyond implausible that the Bush administration honestly believed otherwise, but they weren’t about to stop merely on the force of their oaths of office.
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p>If the people who make the laws – people who are subject on a very regular cycle to considerable outside influence, because they have a vested interest in continuing to get reelected, and for that they need ever-greater quantities of money – are the sole judges of whether those laws they have made are constitutional, and indeed every law they pass is considered by definition constitutional, I honestly don’t see how that doesn’t render the Constitution void. If there’s no mechanism by which to strike down laws which contradict the Constitution, the Constitution has no force. If it has no force, what is it?
are you saying that the constitutions of the 40-odd states that elect their judges are void?
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p>Second, in a constitutional democracy, the ultimate guarantor of the Constitution is the people. In Bob’s system, if the people don’t like the way their elected officials are interpreting the Constitution and their oaths to uphold it, they vote them out. In the system we actually have, if the people don’t like the way the Court is interpreting the Constitution, they replace the current president and wait for someone on the Court to retire or die.
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p>I basically agree with your position; I just think you are seriously overstating your case by arguing that a Constitution is “void” in a system without judicial review.
that the other form of control the people have over constitutional interpretation in our system is that the people’s elected representatives can always amend the Constitution. So in either case, the people maintain ultimate (if indirect) control.
on the Daily Show about torture.
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p>Waterboarding is not torture, because we don’t torture.
The Council of Revisions was a holdover from the Articles of Confederation and ended up being a terrible method of determining what was and wasn’t constitutional, it ended up being entirely politicized by the states and parties to make short term tactical political gains over one another (sounds almost like today’s toxic environment) instead of taking the long view about the country. Having an institution that is appointed rather than elected, and that serves for life instead of for limited terms, forces it to take the longest view possible regarding government decisions. I think it is important at least one branch of government thinks about its actions beyond the next election.
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p>Additionally without judicial review there would be no real federalism, Article 9 clearly states that all the powers not given to the Constitution are granted to the states. Only the Supreme Court can decide state v state cases. I would argue without it we would have had nullification become the norm, alongside other odious perversions like the legislative veto and this republic would have collapsed into civil war far sooner and with much more dire results. There needs to be a final arbiter for state conflicts as well, and the SCOTUS, being above partisan and sectional politics, is the best institution we have at resolving those conflicts.
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p>We also need a final court of appeals and I cannot think of a more democratic institution that would function any better than the SCOTUS does at handling this cases. Unlike other bodies, the SCOTUS is also a self-correcting institution and has oftentimes made up for its mistakes in successor rulings. Most judges move in one direction or another during their lifetime on the court since there is a mass of collective wisdom the institution has that others lack. Personally I wish the court would defer to the legislature more and refer to rights clearly not constituted in the constitution to new amendment procedures. That’s what should have happened with the abortion case and that’s hopefully what will happen with the campaign finance issues. I agree that I do not want more Anthony Kennedy’s capriciously self-describing themselves as America’s philosopher kings and making rulings that are completely detached from the constitutional issues before them. That said, I also think it is important that we have an institution that is free from the taint of party politics, the short sightedness of continual electioneering, and that keeps the rights of minorities and individuals, as well as the rights AND responsibilities of states in mind when it makes its decisions. Of course the court is imperfect, but to paraphrase Churchill its the best third branch we have. There has to be a reason the UK, India, and Turkey are copying the American model and ditching their own. Its worked, and ironically the SCOTUS might be the only lasting Constitutional export we have as we countries share our unique form of executive and legislative composition.
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p>Bush v. Gore is the obvious counter-example to that rather sweeping claim. The calculus may be different, but it’s not clearly “longer.”
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p>First, you mean “Amendment 10,” not “Article 9.” Second, I don’t see what this has to do with judicial review, which is of course the power of the Court to invalidate Acts of Congress. Most state vs. state cases are rather ordinary disputes about boundaries in riverbeds and the like — they present constitutional issues relatively rarely. Moreover, I do not understand Bob to be questioning the power of the Court to invalidate state laws on constitutional grounds; his objection is to federal laws. So your federalism argument seems to me off-base.
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p>I have a hard time seeing how the legislative veto could lead to a disastrous civil war. Feel free to enlighten me.
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p>Au contraire. Many of the Court’s worst mistakes were corrected via the political process — in some cases constitutional amendments (e.g., the Civil War amendments that overruled Dred Scott). Others have never been squarely overruled, but have become historical curiosities showing how badly the Court can work (e.g., Korematsu). True, sometimes the Court has overruled its previous mistakes, such as Brown overruling Plessy. But that took many decades.
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p>All of that said, I favor judicial review in more or less its current form, because I do not see a better alternative. I also think that Justices should be term limited in some fashion.
I argued that nullification along with the legislative veto could have sped up the civil war and that the Supreme Court was the first institution to really assert any concrete federal power under John Marshall, the Congress and Presidency were quite limited in the scope of what they choose to pass until much later in US history. Additionally I did mean Article 10 which refers to the states and Article 9 refers to the people, I often mess those up. That said, I think it is important that the Supreme Court exists as an institution meant to uphold federal law or pick sides between the states. Without it, the states would have far more sovereignty than they should. Also the long-term foresight and self-correcting remarks were intended as generalizations. Of course the court is a human institution and has made mistakes, no one can argue against that. I would argue that it still makes far more deliberative and informed decision than either of the other two branches because of its unique long term focus and the appointed membership. Very little can be said these days of the other branches thinking long term.
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p>Lastly, I generally oppose term limits in most cases other than the Presidency (and I have heard good arguments invalidating those as well but still err on the side of caution), that said I think an age limit might be appropriate. Justice Stevens in his last year had difficulty reading his decisions out loud and hearing all the oral arguments, and Judge Douglas was quite infirm when he was finally dragged out of the court. Fixed term limits would be a bad idea, as they would in the Senate or Congress, as institutional memory is a quite important component to government. California is partly so dysfunctional since very few state senators and reps know how to lead a caucus since they have all been there for a very short time. It also breeds short term decision making as well. I always think the best term limits are the voters themselves in most cases, but again very old SCOTUS judges might make poorer decisions.
Everyone agrees with this:
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p>Everyone (on this thread, anyway) agrees that the Supreme Court should have the power to invalidate state laws that are inconsistent with federal law, including the Constitution. But that has relatively little to do with the question whether the Court can invalidate federal laws on constitutional grounds. The former is about maintaining a union in the face of fifty-odd separate sovereign entities. The latter is about which branch of the federal government has the final say on the meaning of the Constitution. Even Oliver Wendell Holmes, Jr. once said that, while he could not imagine the country holding together without Supreme Court review of state laws, he did not think that judicial review of Acts of Congress was as necessary.
Madison’s Constitution, as interpreted since Marbury, at least, is about channeling tendencies, not forcing a result. Perhaps jconway’s notion on the long term view should be modified to say that the USSC is the most likely to take such view– not that they are forced to. Exceptions abound, of course, as there are likewise instances where the political branches took a long view.
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p>I think jconway was attempting to raise a point about federalism, and that the reference to the 9th and 10th amendment was a misnomer. The issue is that to have a government of limited power, there must be a limiting factor other than the whim of the ones exercising the power with respect to the states. How else could the states retain existence or authority over anything? Otherwise, they would be like Wales, lines on a map, totally controlled by the national Parliament.
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p>Lastly, neither the Court nor any of the other branches are necessarily self-correcting. Which is why there are three of them, each correcting the others.
Animals have feelings; cats and dogs dream and love and fear. That is not the issue.
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p>The issue is legal drafting – which needs to be precise and careful. Overbroad statutes and vague statutes are often found invalid on various grounds.
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p>So, want to draft a statute, here, that avoids infringing on First Amendment Rights but protects animals from being harmed so that scumbags can make money off making media of the harming of animals?
The case involves “The filming of the cruel acts.” I would assume that this Supreme Court ruling has legalized “the filming.”
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p>These films are also evidence of cruel acts that are outlawed by the state laws in all 50 states, as far as I know.
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p>With the film as evidence, the prosecutors could get a jury anywhere to NAIL the sickos who did this, under state laws making the ACT illegal, not the filming of it.
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p>Prosecutors could also get a “psychiatric prison” situation worked out for these sickos. When the general public hears about something like this, they think that these sickos will “graduate” to being mass murderers because they enjoy cruelty.
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p>Is it a good idea to beef up state laws and create federal laws that increase the penalty for this? Yes.
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p>Are these people going to get away with this under existing laws? No.
There are plenty of places in the world where it is perfectly legal to skin a puppy over, let’s say, a week, keeping the animal alive in order to maximize its pain and suffering and increase the enjoyment of people who like to watch such films.
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p>Under this law, one can then open a shop anywhere in the US — let’s say, next to a local school — and sell the videos 24 hours a day.
but very few schools are located next to property which is zoned commercial, and in very few communities are stores allowed to be open 24 hours per day.
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p>Just sayin’.
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p>But my real question to you Bob Neer is: how to distinguish between a commercial enterprise and other forms of speech? After all, political speech can certainly be sold on DVD for money. Should it be illegal for PETA to sell the video as well as SkinPuppiesAliveForFun, Inc.? What if it’s art, like say… a video of a bullfight in a movie? How about filming somebody skewering a pointy metal spike through a fish’s face (aka a hook)? What about education, like a training video showing surgery on a pig or something? What about a depiction created entirely electronically, with no harm to any actual animal at all?
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p>It’s pretty clear that the law is too broad, and that it very well could infringe on lots of speech that we as a society would like to preserve.
The law was fine. It was clear to them that it wasn’t too broad — the presidential signing statement cited above by David shows that the president thought the law was constitutional — and it’s clear to me too. As what we as a society want to do in this instance, the elected representatives of the people are in a far better position to decide then five (or eight, in this case) unelected individuals.
Actually, I’d argue (and argued above) precisely the opposite: the signing statement shows that the president thought the law wasn’t constitutional. Of course, he didn’t come right out and say that. But the fact that he felt it necessary to impose what is essentially an administrative narrowing construction indicates that he was well aware of the law’s overbreadth problem. He may well have been right that, as applied according to his construction, the law is constitutional. Unfortunately, however, First Amendment doctrine has long permitted facial challenges to be brought on the ground that a statute, even if applies constitutionally in the instance before the court, is “overbroad” in that it potentially sweeps in too much protected speech to be constitutionally valid. Smart lawyer that he is, Clinton knew that, and tried his best to finesse it. I give him credit for making it work for about ten years — much longer than I’d have expected.
Given his oath of office. How he chose to enforce it was a separate matter limited, in any event, to the term of his own administration.
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p>Only a lawyer could argue that signing a piece of legislation was proof that the president thought it was, in fact, unconstitutional!
That’s not what David argued, though.
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p>Are you now claiming that no one who swears an oath of office ever breaks that oath? I thought I was joking above when I asked whether you “believe the Constitution functions by magic”!
I think the Congress and the President have more right to pronounce on the constitutionality of legislation than the Court. They are elected. They swear the same oath. There is nothing in the constitution that says the Court should be the final arbiter of constitutionality. If anything, the idea of judicial review of the constitutionality of legislation is what is made up by magic, to use your phrase.
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p>David’s claim was that by stating he would narrowly apply the law Clinton implied he didn’t think it was constitutional as written. My point was that if he didn’t think it was constitutional as written he couldn’t have signed it and been true to his oath. Maybe, in that case, he was breaking his oath, I don’t know, but there was no greater probability of that than that the justices were similarly breaking their oaths in the decision at issue. My working assumption is that everyone is being true to their oaths.
You’ve picked up the word “magic” but you’re using it differently. My point in bringing it up, both here and in my earlier comment, was: if judicial review is invalid what constrains the government to act within the bounds of the constitution?
The constitution, as we have discussed, requires that the President and members of Congress, as well as justices and others, swear to defend it. The question is: where do you want to place your trust: in five unelected people responsible only to whatever whim of the moment seizes their fancy for the rest of their lives (Gore or Bush, abortion rights or no abortion rights, puppy torture as obscene or not obscene) or representatives elected at regular terms and subjected to various additional constraints (for example, Presidential veto can be overridden by a 2/3 vote, Representatives have to be re-elected every two years etc.). Personally, I’ll take the latter and, in my opinion, so would many, or several, of the framers: that’s why they didn’t write judicial review into the document, and why Jefferson and others described it as a despotism.
I’m coming back to this a bit late – work, grocery shopping, and dinner preparation intervened.
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p>It seems to me that you’re trying to leverage inflammatory, emotional topics –
– to support your claim that judicial review is bad, but you’ll have to pardon me for not taking the bait. Certainly I think the outcome of these decisions matters (and I might just as well add, segregation or no segregation; interracial marriage or no interracial marriage; Dred Scott or no Dred Scott, etc.).
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p>But I see no reason at all to imagine that, even if I think this law that was struck down shouldn’t have been, or that one that wasn’t struck down should have been, politicians whose entire job comes down to “get reelected” and to whom corporations can give enormous amounts of money to influence their decisions are likely on balance to produce better determinations about which laws are constitutional and which aren’t than SCotUS justices who, in let’s say the past half-century at least, to have a hope of confirmation must have substantial if not illustrious careers on the bench already, considerable bodies of extant jurisprudence, and sufficient political skill to convince a roomful of hostile Senators that they’ll be “mainstream” and not “activist.”
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p>You’ve been trying to make it sound as if SCotUS justices are picked casually, with no thought to the process except that they agree with the political agenda of the President who nominates them; but the examples of, say, Bork and Miers argue strongly that this isn’t so. If you want to argue that Roberts and Alito shouldn’t have been confirmed so easily, or even that Roberts should be impeached, I’m with you, but those are cases of Congress failing to do its job well enough. Why should we have any greater confidence in its ability to do its job if its job were ruling on the constitutionality of laws?
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p>Or to put it another way: consider today’s Republican party. If the Congress were the final arbiter of constitutionality, do you really think that abortion would have remained legal, we would have had no official national language or religion, hate crimes statutes would have remained on the books, or flag-burning would have remained legal, during the 2003-2007 timespan?
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p>SCotUS is a conservative institution, and it’s often slower than I’d like to come around to the right side of issues (and in some cases, like Santa Clara County, Buckley and Citizens United to name just a few, their failure to come around yet has done very serious harm). But it’s just not plausible that a Congress which changes every two years, and whose members are recipients of unlimited corporate largesse, is going to produce better outcomes than the Court. I’m not saying “judicial review is the best thing ever!”, I’m saying “I don’t see any evidence that any other option wouldn’t be worse.”
I have more confidence in democracy, with all of its flaws, than life nominees, who I think will inevitably vote their personal prejudices. There are plenty of examples of places that get along just fine without judicial review. England, for example.
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p>The issue of abortion is a fascinating matter to consider. I personally think abortion rights are on very thin ground right now. Pro-choice people are lucky that just one more seat didn’t open up under Bush, for example. That’s no way to run a railroad. If, by contrast, Roe had not been decided as it was, and abortion rights supporters had had to mobilize and maintain a truly active involvement in the political process, I think those rights would now be far more secure.
England gets along so fine they are creating a UK Supreme Court and adopting all of our traditions regarding judicial review.
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p>England as an example are you kidding? Their ham handed legal system usually results in very controversial cases being kicked up to the House of Lords which is full of inbred and unstable people appointed for life with no legal qualifications. Otherwise different circuit court equivalents fight for which side is most relevant. It was a disaster and one of the reasons Labor was first elected was partly because of its reform of the Lords and the creation of a permanent UK Supreme Court.
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p>http://en.wikipedia.org/wiki/S…
their democracy ain’t perfect either this article talks about the possibility of Clegg and the Lib Dems winning a majority of the vote while winning few seats compared to the other parties.
I don’t think your implied claim that abortion rights supporters haven’t “mobilize[d] and maintain[ed] a truly active involvement in the political process” is entirely fair.
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p>You like to keep citing Bush v. Gore as proof that judicial review is illegitimate; I think that Bush v. Gore was a fluke (not in being a bad decision – obviously there are plenty of those in the Court’s history, though again I see absolutely no reason to imagine the same harm wouldn’t have occurred if the Congress were the final arbiter of constitutionality, or that it would have taken any less long to repair the harm – but, at least in the modern history of the Court, in being so hasty, so weakly argued and so nakedly partisan), and I submit that more recent cases like Boumediene and Hamdan are strong evidence that the Executive and Legislative branches are as bad as or worse than the Court when it comes to safeguarding the Constitution.
I don’t have time to know for sure, but I’d be suprised to find that this type of atrocity is legal in the following parts of the world:
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p>Canada
Mexico
Latin America
Europe
Russia
East Asia
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p>Someone who would do this is not a “big business” type. I am not defending big companies, but large businesses do need a public image that is tolerable.
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p>And when very wealthy individuals do awful things, they keep them “hush-hush”, not videotape them for the world to see.
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p>For films in the US, they would do it in Canada or Mexico. It’s very unlikely that this is legal there, either.
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p>It is conceivable, but both economic and social factors make it unlikely.
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p>And from a pure money stand point, the costs of traveling to a third world country where it is legal could wipe out the profits made from all 4 freakos who would buy it in the US.
All the court is saying is that the new law is too vague and broad to be applied in a constitutional manner, it is telling the President and Congress to go back to the drawing board and write up something better. The way I see it if the government bans dogfighting at the federal level than the Solicitor General will have a far easier time arguing that these tapes in fact, incite criminal actions.
Bob, you might as well rail against activist judges while you’re at it.
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p>I’m sure that most of the country that would like to re-criminalize sodomy and abortion would be thrilled with your position.
The court should be defended from the populist whims from all comers on the left and right.
I have less faith than Bob does that if the court were more ‘democratic’ it would defend ‘Democratic’ positions on important social issues. I’d say a plurality of the country if it could vote via referendum would ban gay marriage and possibly abortion. Also direct democracy has never worked in any society from Athens to California. There is a reason ours is modeled off the Roman republic and not the Athenian democracy.
For refuting some of your more outrageous claims and extraordinary assertions.
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p>A little knowledge, truly, is a dangerous thing.
He refuted a few generalizations I made about the court, which I admitted were so, with a few individual incidents that ran contrary to my generalizations. I said in most cases, I have never argued it is a perfect institution. You sir are the one making extraordinary assertions in the face of a slew of conflicting evidence against you, including your good friend David who agrees with me that the court should not be democratic and is the best institution we have regarding judicial decisions (I have made no greater claim than that and in fact paraphrased Churchill more directly up the thread). You sir are outrageous calling for the abolition of the judicial branch and the dictatorship of the majority.
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p>What is your alternative btw if the status quo is so untenable?
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p>There would be no Brown, no Roe, no Miranda, no Pentagon Papers, and Nixon would never have been impeached in your world. It is quite difficult to refute that.
Good Lord.
Nixon would have been impeached had he not resigned. In any case the circumstances that brought him down would not have occurred in your world where a democratically elected President who won a wide majority would be able to get away with executive privilege and abuses of power with no independent judiciary to check him.
There is no requirement for the SCOTUS to have ruled on executive privilege before Congress commenced impeachment proceedings. I’m sure that absent a SCOTUS someone else could be chosen to preside by the Chief Justice.
First sentence: of course there’s no legal requirement that the executive privilege ruling have preceded impeachment, but there was in effect a practical requirement.
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p>Second sentence: absent a SCOTUS there would be no Chief Justice! So I don’t get that at all.
Wasn’t Brown v. Board was about state law, not federal?
Wiki:
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p>As to improvements to the current system, jc, there are lots that would make the Court more accountable to the people and less the modern embodiment of aristocratic power (Tocqueville’s characterization, incidentally), as I wrote above to smadin. The President and Congress can refuse to acknowledge the Court’s statements with respect to constitutional questions in more areas (they already do in many; for example, in foreign relations and decisions of war and peace, generally speaking). Term limits are a great idea; I’d say 10 years is about right. Budgetary appropriations to the judiciary can be made conditional on their disavowal of judicial review. A constitutional amendment can explicitly outlaw the doctrine (although, as discussed, I think that is unnecessary because, also as discussed, judicial review isn’t part of the constitution).
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p>It is an interesting subject, and whether one likes it or not depends in large measure on how much one trusts five individuals to have that much power.
You favor discarding the entire structure of the US government, and state and local governments, in order to form a national parliament with absolute power to do whatever a majority of its members favor at any given time.