Hillsdale College - FREE online courses (U.S. Constitution)

Discussion in 'General Distance Learning Discussions' started by me again, Mar 16, 2018.

  1. nosborne48

    nosborne48 Well-Known Member

    Oh, I drew the distinction between the Constitution and the Declaration because the Declaration actually says "We hold these truths to be self-evident". They AREN'T self-evident; Jeremy Bentham called this passage "Nonsense on stilts" if I recall correctly (though he was a BIG fan of the American Experiment). The U.S. Constitution contains nothing of the sort. It's a three-way contract between the people (from whom all legitimate governing authority derives), the state governments, and the federal government which the document itself creates. First and foremost, the U.S. Constitution is a creature of political horse trading.

    Your comment, though, about discovering what's there vs. creating new law has been a vexing theory problem since ancient times. As a practical lawyer and judge I don't think it matters. No matter what you think a judge should do, or how it should be done, the nature of a separation of powers requires that there be an ultimate arbiter of what the text itself means in any given situation. You could vest this authority in the Executive and end up with a Weimar dictatorship, or do as England did throughout much of her history and place it in some part of the Legislature. We chose to create an independent committee for the purpose and call it the Supreme Court.

    The power of the appellate judiciary to do what it thinks best regarding a constitutional question is very great but there are at least two strong checks on that power. The greater but more cumbersome power is that the people can enact amendments to the Constitution to correct a Supreme Court decision they don't like (i.e. Dred Scott and the XIVth Amendment). The subtler but more significant restriction is that no Court may exercise its authority unless some case or controversy is brought before it. The flip side of that second restriction is that no Court may refuse to decide a case once that case is properly brought.

    So (for example) a trial judge HAS to decide whether an individual's right to be free of a particular search was violated because the search was 'unreasonable'. If the situation is novel (and these days it often is) the judge will make law in the process in the process of deciding what's 'reasonable'. The Supreme Courts of the U.S. and the various states cannot perform their functions without creating a great deal of law when the trial judge's decisions are appealed.

    Well, once you've decided to have an arbiter and selected the people who will serve in that position, as a practical matter it is immaterial whether the law is "discovered" or "created". Either way, it's the law going forward unless the people change it. That's the agreement we live under.
  2. me again

    me again Well-Known Member

    The truths that the founders referred to are only recognizable from a Christian perspective, based on a belief in God who gave humankind free will (or freedom). If the Christian factor is removed, then the truths are no longer self-evident.
    Last edited: Mar 18, 2018
  3. heirophant

    heirophant Well-Known Member

    I'm not a Christian so naturally I disagree pretty vehemently with that one. I think that the Founders were people with 18th century style classical educations and they were thinking in terms of ancient Athenian popular democracy.
  4. FTFaculty

    FTFaculty Well-Known Member

    Of course Bentham, that creaky old Legal Positivist, would say that. I think they ARE self-evident, the notion of basic human rights, principles of justice, a people's right to overthrow a tyrannical government. Whether King George III and the British Parliament, stressed at maintaining a superpower, were that tyranny deserving of being overthrown, is a matter for the historians to debate, but that's a different question from whether some things are by very nature just or unjust and whether people, made in the image of God, have certain dignity and rights that transcend those governments. I think that is self-evident and that Bentham was just utterly wrong, a ball of nonsense on stilts himself.

    Absolutely true.

    The problem is, if the courts interpret constitutions and statutes based on personal whims and moods of the moment, then those constitutional protections mean exactly nothing standing alone--it's then all in the hands of an unelected judiciary and their personal feelings, if there is no weight to the notion that judges ought to follow the law and the meaning of it, as best as can be discerned, based on the intent of the framers. And that's precisely what happened with the 14th in Plessy. So the nation goes about doing this great thing during Reconstruction, at great cost, all this effort put into the 13th, 14th, 15th, and then, basically, because of the personal biases of seven unelected and virtually untouchable bigots acting as a superlegislature, there goes the 14th straight out the window for 50-odd years. Surely that cannot be right!

    That's what we're railing against, and it's not intellectually satisfying to say, a la the legal realist, "Oh, well, that's the way the world is, nothing to be done with it." Why then have laws or standards or ethics at all? Why do I tell my children to do the right thing, to not cheat in class, to study their butts off? Heck, people are dirt and that's the way the world is. That just doesn't satisfy me, it shouldn't satisfy anyone.
    Last edited: Mar 18, 2018
  5. FTFaculty

    FTFaculty Well-Known Member

    It was both, a mixed bag. The Founding Fathers were into the Classical Era, Christianity and the atheism and skepticism that was sweeping the world in the late 18th and early 19th centuries. They were all over the place.

    I am a Christian (with Messianic leanings) writ large, but am not one who thinks Christians have a corner on the notion of human rights or natural law or natural rights or much of anything other than Jesus. In fact, Christianity doesn't much promote human rights vis-à-vis the government. You read the New Testament, there's a lot of "Just live with it, people, Jesus' kingdom is not of this world, so submit to even tyrannical worldy authorities, don't be law-breakers and just love each other and live in peace and shut up already." The New Testament--really, the whole Bible, the Hebrew Law, Scriptures and Prophets--cannot be fairly read as calls to action for social justice. That's supposed to begin and end with the individual and they way they treat their neighbor.
  6. me again

    me again Well-Known Member

    With as intelligent as you are, it will be interesting to see how the Lord works with you and guides you throughout your life.
  7. This guy gets it!
  8. heirophant

    heirophant Well-Known Member

    Philosophically speaking Bentham has a point. But the United States had to start out somewhere, by adopting some fundamental principles. That's why paying close attention to the intent of those who drew up the principles remains so relevant today, even for would-be legal demigods. It's why allowing judges total latitude to twist those founding principles to whatever political agenda they personally favor to is so threatening.

    If judges start reinterpreting our nations's founding principles to mean anything they like, then we would seem to have devolved into a dictatorship by jurists.

    But if judges are no longer bound by constraints derived from meaning of the founding documents, where does the separation of powers come from? What justifies it?

    Obviously laws and Constitutional provisions have to be interpreted when new historical circumstances arise that the writers and framers may have never anticipated. But if that's to work, if it's to be interpretation rather than de novo diktat, then there needs to be some faithful fidelity to the original documents' meaning and intention.

    The issue here isn't whether lawschool students should study previous Appellate and Supreme Court decisions. Obviously they should. That's how our system of common law works. If you think that these free Hillsdale classes don't pay enough attention to previous court decisions, you might be right from the perspective of law school and what lawyers need to learn.

    But these aren't lawschool classes, they are classes intended for citizens (and interested foreigners) on the founding principles of the United States of America. And those principles are the concern of all of us, they aren't just the exclusive concern of lawyers and jurists.

    And I'll add that I think that it's exceedingly dangerous if judges (and others in positions of power and influence) deviate too far from those principles.
    Last edited: Mar 18, 2018
  9. nosborne48

    nosborne48 Well-Known Member

    Appellate Judges can do as they like? Well, yes, to some extent they can. And yes, that IS a problem. But what solution can one suggest? An appeal to a different Court? Then THAT becomes the Supreme Court and can do what it likes. An appeal to the people directly? Sure, I guess it could be done in some cases with modern technology but remember that the purpose of much of the Bill of Rights is to protect individuals from the unbridled power of the mob. The people actually DO have the ultimate say through the amendment process.

    But again, unless you have a revolution, even if Judges "deviate too far" from your idea of constitutional principles, there's really nothing you can do about it. The decision-making isn't in your hands (unless you happen to be one of the Judges). And another citizen might believe that the constitution requires an even more radical departure than the act to which you object but the decision-making isn't in his hands either.

    The Founders built it that way, in part I suspect to insulate the judiciary from the passions of the moment. There is national agreement on the shape of the system and that's about all we can hope for. FWIW, about the only part of government that still enjoys a modicum of esteem from the public at large is the judiciary.

    There are a few safeguards...appellate Courts decide cases in panels. No single appellate Judge can do anything of substance. Appellate decisions are public and readily available for inspection. The judiciary does not possess its own police force but relies on the Executive to enforce its decrees. The judiciary does not impose its own taxes but relies on the Legislature for funding. The Judiciary does not appoint its own membership and any Judge cam be removed by the Legislature.

    Perhaps the most important restraint on the judiciary is the legal culture itself which is based on the notion of the "common law". Common law includes a moral duty (at least) to follow precedent unless there are strong reasons not to. This legal culture does not depend upon the life of any individual or group to preserve and propagate its norms. If you are interested in this rather obscure area of legal philosophy, I recommend reading HLA Hart.
  10. Kizmet

    Kizmet Moderator

    I don't know anyone who would disagree with that. The question becomes "how far is too far." Clearly this is an area where different people have different opinions. Federal judges are appointed by elected officials and so the assumption if that their positions on matters of law are reflective of the people. At any given time that will be more or less true for any given individual. It's the reason that the Supreme Court is so important. BTW, no one is suggesting that Judges should have "total latitude" as you stated. It's a bit hyperbolic to suggest otherwise.

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