Yet another example of a judge making the law herself. Of course I wouldn’t want a child to be raised in that kind of environment as well.
Obviously, the judge is waaay out of bounds. But let me ask this: if you, any of you, were the judge in this case, what would you have done?
She stopped short of ordering sterilization. Had she done that I’d be less ambivalent. As it is, only the Constitutionalist in me has a problem with this. The cost to society is too high and children deserve a better start.
When I think of the uncertain lives of these babies, my head just hurts and I’m glad I’m not a judge. It must be hard to be required to let someone go and sin again.
The Savior must find that hard to do. We come out of the waters of baptism all clean and before long we’re messing up again.
Must be a lesson in that for the judge, but I imagine she’s had to harden her heart to it.
Fabulous. It will be delightful to hear all the so-called “right to life” types frantically invoking Roe v. Wade — should serve as a nice little reminder that the Roe line of cases not only bars the goverment from interfering in your decision *not* to bear children, it also bars the government from interfering in your decision *to* bear children. Maybe it will make the anti-abortion fanatics just a bit less enthusiastic about (foolishly) trying to tear that constutitonal bulwark down.
And, BTW, I would not so quickly assume that it is “obvious” the judge is “waaay out of bounds,” at least in the sense that she is beyond her authority to enforce the order. While I think the order is probably improper, the question is a close one. The inherent power of a court, sitting in equity, to enforce its judgment is both very broad and very deep — certainly the First and Fifth Amendments are no bar to coercive civil contempt sanctions. Elizabeth Morgan sat in jail for a long time for refusing to divulge information the court wanted. So did Susan McDougall. It’s not clear to me that the Fourteenth Amendment would prevent sanctions that the other — more textually explicit — Amendments don’t. Criminal contempt is probably constitutionally impermissible in this case, but it is not entirely clear whether some flavor of civil contempt may not be.
I actually think this is really great! I think people need to take responsibility for their sexual choices, and I think there is an appropriate role for the government in this. Any government power may be abused, but we still need the government to have some powers; why not this one?
I am very interested to see if this plays into a bigger story about the legalities of reproduction, sex, etc.
I guess I should mention Buck v. Bell before Nate does. Not that I particularly like that case. But it certainly isn’t often that you get to compare it to a modern case — there are just very few modern judges willing to say, “three generations of imbeciles is enough.”
“. . . there are just very few modern judges willing to say,’three generations of imbeciles is [actually, are] enough.'”
Yes, fortunately, and in large part because the eugenic policies behind Justice Holmes’ assertion were a bit, shall we say, discredited by the Nazi atrocities that occurred between Buck v. Bell and Court’s abrupt about-face in Skinner v. Oklahoma. Letting the state decide who should procreate and who shouldn’t didn’t look quite so appealing by the early 1940s.
Which also answers the question as to “we still need the government to have some powers, why not this one?” Past experience suggests that governmental involvement in decisions about who gets conceived and who doesn’t is NOT a good idea. The same constitutional prohibition that prevents the government from mandating that you MUST carry a child also prevents the government from mandating that you MUST NOT carry a child — ensuring the much-cherished right of LDS families to rear 6, 8, 12 or whatever other appallingly large number of children they feel they ought to.
Society’s problems often end up before a judge, dressed up as a case. Since the state already claims and exercises the right to interfere with a parent’s right to custody of children in cases of crime, abuse, or even routine divorce, it’s not much of a stretch to see the basis for the state to claim an interest in a parent’s right to further procreation in cases of crime or abuse. No right is absolute. But single cases, especially extreme ones like this, are hardly the ideal context for crafting new general rules.
OK – here is a non-lawyer’s perspective : should the State not be able to i nterfere if the couplein question have clearly demonstrated total irresponsibility and a total lack of ability to raise children? Constitutional niceties aside, should we as a society allow such losers to continue to procreate and proceed in their merry way? I think , legal reasoning aside, that, these 2 adults, who have demonstrated a clear lack of responsibility, ought to be sterilised so that they cannot procreate any more.
I think it’s hard to argue against this judge’s particular ruling without a slippery slope argument. This couple has already had four chances to improve their parenting and have demonstrated that they do not care to do so. Not showing up for court is a good way to indicate apathy toward one’s parental duties. Good LDS families with 6 kids have little to fear at this point.
On the other hand, the worldview that permits judges to make such rulings is demonstrably dangerous to us as a nation–judicial activism is capable of rendering the Constitution completely moot. That process is well underway. We see Scalia fighting it, but more and more, he is fighting it alone.
Here is a similar case that I’ve been blogging on re: deadbeat dads & failure to comply with payments = choice of jail or being “tied.”
[sorry, I don’t know how to do pings/trackbacks, etc.]
————-
I just ran across this great story about deadbeat dads.
If they don’t pay child support, they get either jail time or a vasectomy, for their contempt of the court (i.e. not paying/being responsible).
MARVELOUS! Here is a judge that asks the individual to be accountable for their actions; or forego the right to do the action in question.
[Restoring Comments Inadvertently Lost in the WP transfer] :
“MARVELOUS! Here is a judge that asks the individual to be accountable for their [sic] actions; or forego the right to do the action in question.”
Marvelous indeed. Shoplift a few times, and we’ll cut off your hand.
A couple of slander convictions and we’ll cut out your tongue.
Maybe, use your brain more often, or we’ll lobotomize you.
(cf. Bentham’s recommendation that embezzlers should have their hands impaled with an iron pen as a sort of semiotic object lesson. He was just full of great ideas, ‘ol Jeremy was.)
Comment by: obi-wan at May 9, 2004 03:39 PM
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” . . . judicial activism is capable of rendering the Constitution completely moot. That process is well underway. We see Scalia fighting it, but more and more, he is fighting it alone.”
Pardon, but I don’t think we see anything of the kind.
So far as I can tell, based on usage, “judicial activism” is simply code for “judges making law that I don’t like.”
Making law is what judges do. Scalia is just as “activist” as anyone, and probably more “activist” than most, the only difference being that he is headed in a rather different direction, and so complains more about not having a majority to be activist with.
Comment by: obi-wan at May 9, 2004 03:50 PM
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yes…the learned obi-wan, unlike the learned hand, leads us to understanding. Scalia is activist, in a return us to the way it was before leftist judges became activists in the first place, kinda way.
I enjoy the far from analogous comments that obi-wan made. i need a goode laugh on a regular basis. obiwan probably wouldn’t support a certain operation as punishment for rapists either, but hey, soft on crime is way more important than personal accountability, right?
:)
Comment by: lyle at May 9, 2004 05:07 PM
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I thought Congress made laws. Now I feel stupid.
Comment by: Sheri Lynn at May 9, 2004 05:27 PM
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” . . . but, hey, soft on crime is way more important than personal accountability, right?”
I believe it was Tolkien — although I cannot recall if he may have been quoting Chesterton — who observed that children are naturally bloodthirsty, because they are innocent, and so feel free to prefer Justice; whereas grown-ups all know that they themselves are quite guilty, and so prefer Mercy.
It is indeed a rare pleasure to encounter someone sufficiently innocent as to feel comfortable meting out bodily mutilation in the name of “personal accountability.” My compliments.
And, BTW, since common-law judges became “activist” well before William the Bastard started loading up his longships for the trip across the Channel, your friend Scalia will need to roll back most of Anglo-American jurisprudence before he gets us anywhere near that mythical “in the first place.”
Comment by: obi-wan at May 9, 2004 05:50 PM
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Sheri Lynn: I thought Congress made laws too.
Then I went to law school, where I learned that a mindboggling array of groups make laws, from:
congress, to the lobbyists that actually write the laws that congress passes, to administrative agencies (like the SEC), to the President, to the courts to…it never ends.
Sadly, either this is necessary in a modern society…cuz it’s all too complicated, or…its too hard to ask Congress & state legislatures to pass specific laws & to ask the Executive branches to simply enforce these laws rather than fighting/twisting them…and the same of the courts…to merely “judge” rather than “interpret” & thus make laws.
Comment by: lyle at May 9, 2004 05:54 PM
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Obiwan: Lol. Touche! except…i’m more of a masochist; hopefully i’ll grow more christlike.
happily, Scalia is only trying to roll back the tide to say the 50’s…before maybe moving back to the Original Founding perhaps.
Comment by: lyle at May 9, 2004 06:01 PM
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“I thought Congress made laws.”
No. Congress is too busy amassing campaign contributions. Mostly lobbyists write laws, which the judiciary then tries to make sense of, or else resorts to the common law when sense can’t be made.
Either judicial exercise is pretty clearly “making law,” whether your jurisprudential tastes run to Holmes, Hart, Fuller, Dworkin (any of the three), Unger, or elsewhere.
Comment by: obi-wan at May 9, 2004 06:01 PM
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“happily, Scalia is only trying to roll back the tide to say the ’50s . . . before maybe moving back to the Original Founding perhaps.”
I have long been puzzled by the popularity among LDS law-types of originalist, “plain meaning,” or similar interpretive approaches that treat legal texts as if they were fixed, static, and susceptible of only one legitimate interpretation.
I understand why the Evangelical law-types adopt this position. They have in their faith no mechanism for authoritative scriptural re-interpretation, and so are pretty much forced to assume that the Biblical text speaks for itself — making them, perhaps even more than the Jews, people for whom the Word is the Text. Their approach to that Text spills over into their approach to other, legal, texts.
But the LDS faith is on an entirely different footing — we have authoritative sources that we claim can and regularly do re-interpret sacred text in light of changed conditions. Consequently, we have no particular reason to treat legal texts as static; we certainly don’t treat our sacred texts that way. One would think that LDS attorneys would have some predisposition to an approach more like Lessig’s “translation” theory, or Eskridge’s dynamic statutory interpretation.
I suppose one answer might be that too many LDS law-types have spent too much time hanging around with the Evangelical law-types at the Federalist Society, and have unconsciously adopted their biases without thinking carefully about what approach makes the most sense from an LDS worldview. But that seems a fairly unsatisfactory answer.
Comment by: obi-wan at May 9, 2004 07:10 PM
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Obiwan, you hit upon the satisfactory answer because, yes, LDS folks do have an understaning of “authoritative” constitution re-interpretation; similar to how LDS folks can accept that when God/The Prophet speaks…stuff can change.
But…throughout the last century, we have had incorrect and non-authoritative folks making the changes; whether a cowed Supreme Court via FDR or just the Supreme Court acting like it can amend the constitution by its much lesser Marbury power to interpret the Constitution as it “is,” not as the Court says it ‘is’.
Comment by: lyle at May 9, 2004 07:57 PM
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To return to the orignal subject of Kaimi’s post…
This judge’s ruling certainly is a “wake up call”. I would hope that it would serve as a splash of cold water on the faces of a great number of people, on both the “Left” and the “Right”. I have to laugh (in a very fatalistic way) when I see items like this and then think of all the “conservatives” out there, a’ la Newt Gingrich, who have over the years “pooh-poohed” the need to make a serious overhaul, immediately, of the Welfare State, because the Welfare State is so obviously corrupt and incompetent that it will just “wither away”, like Communism. A few, much smarter and wiser voices have pointed out the fallacy of this. In fact, what we are liable to get is not some libertarian paradise, but rather “The Custodial State”, a coercive, brutal form of Welfareism that NO ONE will like. This court decision could be seen as just the most obvious sign to date of where this is going.
For those on the “Left”, I would hope that this might help point out that when you accept the principle of using force, through law, to take from the “haves” and give to the “have nots” (enforcing the fast offering at the point of the sword), you may find yourself not far removed from using that same force to make the “have nots” do what the “haves” want. It only stands to reason that government can claim to regulate that which it subsidizes. Likewise, if you subsidize pregnancy, you shouldn’t be surprised to get more of it, and from the very class of people least inclined or able to consider the immorality of living off others, and the responsibility to care for one’s own children. One of the reasons I woke up and fled from the socialism of my earlier beliefs as a young man, was my realization of the creeping and insidious totalitarianism of the Welfare State (which I initially embraced, unlike most “liberals” I have ever known), and the ultimate evil this leads to.
Like it or not, when we ignore the principle of human agency, evil *always* results, and grows unceasingly unless checked. You simply cannot get God’s results out of Satan’s methods. God’s plan is for those who “have” to *voluntarily* give to those who “have not”, and when we try to *force* that giving, we may initially “solve” the poverty issue (the poor are fed, clothed, and housed), but open a Pandora’s box of new problems. In our desire to solve these, but maintain our allegiance to the culture of enforced charity and equality, we create more programs, spend more money, etc., but only have more problems. Finally, in desperation (and for some, opportunism and lust for power), we resort to increasingly draconian means to force people to be “good” and “smart”, ignoring the fact that these people are only doing what the upbringing we have subsidized has taught them: you can have sex whenever and with whomever you please, and government will always pay for the results.
Finally, with regard to Obi-Wan and others who are so enamored of unelected judges making new law, in direct opposition to the people’s own wishes as manifested through actual written law (or lack of same), I wonder if such intelligent people would feel as enthused if their own mortgage company adopted this same doctrine? What if your bank decided that your mortgage contract no longer means what it did when it was written and signed, but “new circumstances”, unforseen at the time of the mortgage’s creation, trump the “guarantees” of the original document, and now your mortgage payment will be higher, the interest will be higher, the duration longer, etc. The Constitution is not “scripture”, it is a legal contract, and can only be changed in the manner the contract stipulates. Precedent may serve to illuminate our views of the document where the document is not clear, as precedent over time seems to imply the acquiescence of the American People, but if we say that judges can concoct new law from whole cloth, even contradicting the written text and clear meaning of the Constitution itself, what does this say about the continued vitality of *any* of our constitutional protections? How long can the Church continue its mission, in an environment of religious freedom, if the Constitution means, ultimately, whatever a five-person majority of the Supreme Court says it means? Has the Reynolds decision, or for that matter Dred Scott, faded that much from our memories? What happens when the courts decide that government’s “compelling interest” to protect against “sexual orientation” discrimination overides the First Amendment, and the Church and its institutions face harrasment for our hiring policies? What happens when “warning of the dangers of fornication, adultery, homosexuality, and other forms of immorality” becomes “hate speech”? We had better start thinking about what our responses are going to be such threats, or better still maybe we should work now to prevent them, before they end up slapping us in the face.
Comment by: Gary Cooper at May 10, 2004 01:57 PM
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I don’t necesarily feel that judicial activism is a bad thing,
but…
I don’t really see how scalia is seen as activist in the sense of interpreting or creating law.
I mean- Scalia is basically a hard and true defender of procedural due process. I think by nature that prevents activism- it defers to the legislature. Thams seems to be there as well. Thomas’s comment in lawrence v texas that he felt the law was a stupid one and if he were a member of the texas legislature he would vote to overturn the law- but he doesn’t feel strongly that it is unconstitutional.
likewise scalia’s arguments in casey- the state has the right to allow abortion on demand, BUT they aren’t required constitutionally to allow it.
Scalia may have an agenda- no question about it, BUT rather than being activist he is by definition defering rather than taking an active role in shaping law.
now, if it would serve scalia’s ends to view due process in a substantive manner would he? who knows. But to say he is being activist I think is problematic on the definitional level.
I’m really not a fan of Scalia’s political views. But, I thnk he is the best writer on the court, and largely the most consistent in his logic.
My problem with OConner and Kennedy is the complete lack of consistency in the logic they use to interpret the constitution, and how it seems to switch depending on the particular case. It is almost as if OConner just figures out what feels right and then makes the arguments for how to get there.
Although, Kennedy’s decisions lately have seemed to be much more consistent. His arguments in Lawrence seem to point to a new interprative standard that I really kind of like. Really, the largest problem with Lawrence is that Scalia’s argument that the logic employed by Kennedy would also make it seem that other laws regulating morality are unconstitutional. Kennedy denys this, but I don’t know why. I say go ahead and say- “yeah many of them likely are” and just stick with the very new but also retro standard of limited government power and that government must justify infringements on liberty rather than petitioners show a constitutional right. Stepping away from rights talk to an extent.
Which is also why I feel that maybe the constitution does provide a protection of the right to abortion- but the logic in Roe isn’t really that great
Comment by: Mike at May 10, 2004 08:26 PM
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Dear me. Gary presents us with such a wealth of latent contradictions that one hardly knows where to begin.
I shall try to take matters up in some organized fashion.
1) First, I am always taken somewhat aback at the recurrent trope about “unelected judges,” given that the majority of judges interpreting constitutional law in this country are either elected or appointed and re-elected. This is actually *not* an especially good thing, as it injects into the judiciary the same public choice problems that infect the legislature — there have been some truly atrocious cases in Arizona and Texas, for example. I rather *wish* the law was being primarily made by unelected judges, but it simply isn’t.
2) Second, the mortgage example is rather blatantly inapposite. The U.S. Constitution comprises a blueprint for a network of governmental institutions, not a “legal contract” of the sort that Gary asserts. The implications of adopting that analogy are quite mind-boggling. Who made the offer? When did I accept it? For what consideration? And how can it possibly bind non-parties?
Even if Gary is arguing some form of “social contract” theory, that is essentially an agency theory, not a contract in the sense that he is using the term.
3) But even assuming Gary’s contractual model for a moment, it would be entirely permissible for for one’s mortgage company to start varying terms of the instrument if the instrument contained some mechanism for doing so (in fact, my credit card company seems to do this with great frequency, because the instrument is designed in exactly that fashion).
The Constitution contains precisely such mechanisms, including the active participation of the judiciary in law-making. The power of common law judges had long been a check on the tyranny of the soveriegn, and the Framers fully expected that they would continue in that role. This is why our constitution has remained viable for the past two centuries, when other democracies were changing constitutions nearly as often as their citizens changed underwear (and in some countries, probably more often than their citizens change underwear) — the power of the U.S. judiciary to keep the document vital, dynamic, and relevant. Gerhard Caspar long ago did some wonderful comparative work identifying this as the great genius of the American system, and the great handicap of continental systems such as the German Constitutional Court.
4) Before leaving the contractual analogy, I note in passing that Gary’s theory of contractual interpretation, *as* a theory of contractual interpretation, is awfully impoverished — recall Corbin’s distinction between interpretation and construction, not to mention all the recent work by Ayers and others on incompletely theorized contracts — Gary’s static contractual approach fails to engage any of that.
5) The assertion that the Constitution is not scripture misses a great deal, on a variety of levels. There is actually a fairly strong argument under LDS doctrine that the Constitution is in fact a form of inspired writing. Setting that aside, the Constitution has, sociologically speaking, been referred to as the great American covenant, in the best Deuteronomic sense of the term, since that is the societal role it plays.
But my assertion is rather a more simple one, which is that the interpretive assumptions one adopts vis a vis one text are likely to carry over into the interpretation of another. Certainly all of the interpretive tools that the judiciary regularly uses in approaching legal texts — including those tools adopted by the ever-popular Justice Scalia — were developed in the context of scriptural exegesis.
6) Interpretive approaches aside, I am mightily puzzled by the “environment of religious freedom” comment, since of course there *was* no environment of religious freedom until the Supreme Court, in what Gary would doubtless call “activist” mode, invented the doctrine of selective incorporation and applied the First Amendment to the states. The Saints in Nauvoo seemed to think that the First Amendment ought to protect them from state-sponsored religious persecution, but that protection was a civil war, several amendments, and a lot of judicial “activism” in the future.
7) I have also long been puzzled by the invocation of the Reynolds and Dred Scott cases by those decrying “judicial activism” (Scott Card, for example, seems very fond of this trope), since those are in fact cases where the Court was at its least “activist,” essentially abdicating its role in order to acquiese in some exceptionally bad decisions of the legislature. The cry “Remember Reynolds!” or “Remember Dred Scott!” seems to militate in favor of more judicial involvement, rather than less. I quite agree with that sentiment, of course, but it rather seems to contradict the overall argument of those who chant the slogan.
8) So, too, the parade of horribles regarding sexual orientation and hiring — the compelling governmental interest standard Gary cites is a standard of judicial review vis a vis the legislature — and, in particular, judicial code for “we’re going along with the legislature on this one.” Speculating that it might one day override the Free Exercise clause posits a situation where the legislature is imposing an offensive standard on Church practice (which Congress has in fact periodically attempted to do in fair housing, employment discrimination, and some other areas) and where the courts have declined to stop them — precisely the situation where one would want some “judicial activism” to put the brakes on the tyranny of the majority. I entirely agree with Gary’s implication that it is the *elected* lawmakers we need to fear more than the unelected ones, but that once again that doesn’t seem too consistent with his earlier claims.
Finally, a note to Mike — I hope we all understand tht “deference to the legislature,” whether by Scalia or anyone else, is just so much hermeneutical chin music. There are some lovely recent cases where different courts, interpreting exactly the same language, reach diametrically opposed results by “deferring to the legistlature” — in one case, refusing to exclude from the ambit of a statute an item that was not explicitly excluded, all the while declaiming that it was for the legislature to exclude the item should it choose to do so — and in the other case refusing to include within the same statute the same item because it was not explicitly included, all the while declaiming that it was for the legislauture in include the item should it choose to do so — in each case, just interpretive sleight of hand intended to get the court where it wanted to go. It’s all in the wrist, really.
Comment by: obi-wan at May 11, 2004 02:45 AM
Yet another example of a judge making the law herself. Of course I wouldn’t want a child to be raised in that kind of environment as well.
Obviously, the judge is waaay out of bounds. But let me ask this: if you, any of you, were the judge in this case, what would you have done?
She stopped short of ordering sterilization. Had she done that I’d be less ambivalent. As it is, only the Constitutionalist in me has a problem with this. The cost to society is too high and children deserve a better start.
When I think of the uncertain lives of these babies, my head just hurts and I’m glad I’m not a judge. It must be hard to be required to let someone go and sin again.
The Savior must find that hard to do. We come out of the waters of baptism all clean and before long we’re messing up again.
Must be a lesson in that for the judge, but I imagine she’s had to harden her heart to it.
Fabulous. It will be delightful to hear all the so-called “right to life” types frantically invoking Roe v. Wade — should serve as a nice little reminder that the Roe line of cases not only bars the goverment from interfering in your decision *not* to bear children, it also bars the government from interfering in your decision *to* bear children. Maybe it will make the anti-abortion fanatics just a bit less enthusiastic about (foolishly) trying to tear that constutitonal bulwark down.
And, BTW, I would not so quickly assume that it is “obvious” the judge is “waaay out of bounds,” at least in the sense that she is beyond her authority to enforce the order. While I think the order is probably improper, the question is a close one. The inherent power of a court, sitting in equity, to enforce its judgment is both very broad and very deep — certainly the First and Fifth Amendments are no bar to coercive civil contempt sanctions. Elizabeth Morgan sat in jail for a long time for refusing to divulge information the court wanted. So did Susan McDougall. It’s not clear to me that the Fourteenth Amendment would prevent sanctions that the other — more textually explicit — Amendments don’t. Criminal contempt is probably constitutionally impermissible in this case, but it is not entirely clear whether some flavor of civil contempt may not be.
I actually think this is really great! I think people need to take responsibility for their sexual choices, and I think there is an appropriate role for the government in this. Any government power may be abused, but we still need the government to have some powers; why not this one?
I am very interested to see if this plays into a bigger story about the legalities of reproduction, sex, etc.
I guess I should mention Buck v. Bell before Nate does. Not that I particularly like that case. But it certainly isn’t often that you get to compare it to a modern case — there are just very few modern judges willing to say, “three generations of imbeciles is enough.”
“. . . there are just very few modern judges willing to say,’three generations of imbeciles is [actually, are] enough.'”
Yes, fortunately, and in large part because the eugenic policies behind Justice Holmes’ assertion were a bit, shall we say, discredited by the Nazi atrocities that occurred between Buck v. Bell and Court’s abrupt about-face in Skinner v. Oklahoma. Letting the state decide who should procreate and who shouldn’t didn’t look quite so appealing by the early 1940s.
Which also answers the question as to “we still need the government to have some powers, why not this one?” Past experience suggests that governmental involvement in decisions about who gets conceived and who doesn’t is NOT a good idea. The same constitutional prohibition that prevents the government from mandating that you MUST carry a child also prevents the government from mandating that you MUST NOT carry a child — ensuring the much-cherished right of LDS families to rear 6, 8, 12 or whatever other appallingly large number of children they feel they ought to.
Society’s problems often end up before a judge, dressed up as a case. Since the state already claims and exercises the right to interfere with a parent’s right to custody of children in cases of crime, abuse, or even routine divorce, it’s not much of a stretch to see the basis for the state to claim an interest in a parent’s right to further procreation in cases of crime or abuse. No right is absolute. But single cases, especially extreme ones like this, are hardly the ideal context for crafting new general rules.
OK – here is a non-lawyer’s perspective : should the State not be able to i nterfere if the couplein question have clearly demonstrated total irresponsibility and a total lack of ability to raise children? Constitutional niceties aside, should we as a society allow such losers to continue to procreate and proceed in their merry way? I think , legal reasoning aside, that, these 2 adults, who have demonstrated a clear lack of responsibility, ought to be sterilised so that they cannot procreate any more.
I think it’s hard to argue against this judge’s particular ruling without a slippery slope argument. This couple has already had four chances to improve their parenting and have demonstrated that they do not care to do so. Not showing up for court is a good way to indicate apathy toward one’s parental duties. Good LDS families with 6 kids have little to fear at this point.
On the other hand, the worldview that permits judges to make such rulings is demonstrably dangerous to us as a nation–judicial activism is capable of rendering the Constitution completely moot. That process is well underway. We see Scalia fighting it, but more and more, he is fighting it alone.
Here is a similar case that I’ve been blogging on re: deadbeat dads & failure to comply with payments = choice of jail or being “tied.”
[sorry, I don’t know how to do pings/trackbacks, etc.]
————-
I just ran across this great story about deadbeat dads.
If they don’t pay child support, they get either jail time or a vasectomy, for their contempt of the court (i.e. not paying/being responsible).
MARVELOUS! Here is a judge that asks the individual to be accountable for their actions; or forego the right to do the action in question.
http://www.nytimes.com/aponline/national/AP-Deadbeat-Dads.html
[Restoring Comments Inadvertently Lost in the WP transfer] :
“MARVELOUS! Here is a judge that asks the individual to be accountable for their [sic] actions; or forego the right to do the action in question.”
Marvelous indeed. Shoplift a few times, and we’ll cut off your hand.
A couple of slander convictions and we’ll cut out your tongue.
Maybe, use your brain more often, or we’ll lobotomize you.
(cf. Bentham’s recommendation that embezzlers should have their hands impaled with an iron pen as a sort of semiotic object lesson. He was just full of great ideas, ‘ol Jeremy was.)
Comment by: obi-wan at May 9, 2004 03:39 PM
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” . . . judicial activism is capable of rendering the Constitution completely moot. That process is well underway. We see Scalia fighting it, but more and more, he is fighting it alone.”
Pardon, but I don’t think we see anything of the kind.
So far as I can tell, based on usage, “judicial activism” is simply code for “judges making law that I don’t like.”
Making law is what judges do. Scalia is just as “activist” as anyone, and probably more “activist” than most, the only difference being that he is headed in a rather different direction, and so complains more about not having a majority to be activist with.
Comment by: obi-wan at May 9, 2004 03:50 PM
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yes…the learned obi-wan, unlike the learned hand, leads us to understanding. Scalia is activist, in a return us to the way it was before leftist judges became activists in the first place, kinda way.
I enjoy the far from analogous comments that obi-wan made. i need a goode laugh on a regular basis. obiwan probably wouldn’t support a certain operation as punishment for rapists either, but hey, soft on crime is way more important than personal accountability, right?
:)
Comment by: lyle at May 9, 2004 05:07 PM
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I thought Congress made laws. Now I feel stupid.
Comment by: Sheri Lynn at May 9, 2004 05:27 PM
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” . . . but, hey, soft on crime is way more important than personal accountability, right?”
I believe it was Tolkien — although I cannot recall if he may have been quoting Chesterton — who observed that children are naturally bloodthirsty, because they are innocent, and so feel free to prefer Justice; whereas grown-ups all know that they themselves are quite guilty, and so prefer Mercy.
It is indeed a rare pleasure to encounter someone sufficiently innocent as to feel comfortable meting out bodily mutilation in the name of “personal accountability.” My compliments.
And, BTW, since common-law judges became “activist” well before William the Bastard started loading up his longships for the trip across the Channel, your friend Scalia will need to roll back most of Anglo-American jurisprudence before he gets us anywhere near that mythical “in the first place.”
Comment by: obi-wan at May 9, 2004 05:50 PM
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Sheri Lynn: I thought Congress made laws too.
Then I went to law school, where I learned that a mindboggling array of groups make laws, from:
congress, to the lobbyists that actually write the laws that congress passes, to administrative agencies (like the SEC), to the President, to the courts to…it never ends.
Sadly, either this is necessary in a modern society…cuz it’s all too complicated, or…its too hard to ask Congress & state legislatures to pass specific laws & to ask the Executive branches to simply enforce these laws rather than fighting/twisting them…and the same of the courts…to merely “judge” rather than “interpret” & thus make laws.
Comment by: lyle at May 9, 2004 05:54 PM
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Obiwan: Lol. Touche! except…i’m more of a masochist; hopefully i’ll grow more christlike.
happily, Scalia is only trying to roll back the tide to say the 50’s…before maybe moving back to the Original Founding perhaps.
Comment by: lyle at May 9, 2004 06:01 PM
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“I thought Congress made laws.”
No. Congress is too busy amassing campaign contributions. Mostly lobbyists write laws, which the judiciary then tries to make sense of, or else resorts to the common law when sense can’t be made.
Either judicial exercise is pretty clearly “making law,” whether your jurisprudential tastes run to Holmes, Hart, Fuller, Dworkin (any of the three), Unger, or elsewhere.
Comment by: obi-wan at May 9, 2004 06:01 PM
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“happily, Scalia is only trying to roll back the tide to say the ’50s . . . before maybe moving back to the Original Founding perhaps.”
I have long been puzzled by the popularity among LDS law-types of originalist, “plain meaning,” or similar interpretive approaches that treat legal texts as if they were fixed, static, and susceptible of only one legitimate interpretation.
I understand why the Evangelical law-types adopt this position. They have in their faith no mechanism for authoritative scriptural re-interpretation, and so are pretty much forced to assume that the Biblical text speaks for itself — making them, perhaps even more than the Jews, people for whom the Word is the Text. Their approach to that Text spills over into their approach to other, legal, texts.
But the LDS faith is on an entirely different footing — we have authoritative sources that we claim can and regularly do re-interpret sacred text in light of changed conditions. Consequently, we have no particular reason to treat legal texts as static; we certainly don’t treat our sacred texts that way. One would think that LDS attorneys would have some predisposition to an approach more like Lessig’s “translation” theory, or Eskridge’s dynamic statutory interpretation.
I suppose one answer might be that too many LDS law-types have spent too much time hanging around with the Evangelical law-types at the Federalist Society, and have unconsciously adopted their biases without thinking carefully about what approach makes the most sense from an LDS worldview. But that seems a fairly unsatisfactory answer.
Comment by: obi-wan at May 9, 2004 07:10 PM
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Obiwan, you hit upon the satisfactory answer because, yes, LDS folks do have an understaning of “authoritative” constitution re-interpretation; similar to how LDS folks can accept that when God/The Prophet speaks…stuff can change.
But…throughout the last century, we have had incorrect and non-authoritative folks making the changes; whether a cowed Supreme Court via FDR or just the Supreme Court acting like it can amend the constitution by its much lesser Marbury power to interpret the Constitution as it “is,” not as the Court says it ‘is’.
Comment by: lyle at May 9, 2004 07:57 PM
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To return to the orignal subject of Kaimi’s post…
This judge’s ruling certainly is a “wake up call”. I would hope that it would serve as a splash of cold water on the faces of a great number of people, on both the “Left” and the “Right”. I have to laugh (in a very fatalistic way) when I see items like this and then think of all the “conservatives” out there, a’ la Newt Gingrich, who have over the years “pooh-poohed” the need to make a serious overhaul, immediately, of the Welfare State, because the Welfare State is so obviously corrupt and incompetent that it will just “wither away”, like Communism. A few, much smarter and wiser voices have pointed out the fallacy of this. In fact, what we are liable to get is not some libertarian paradise, but rather “The Custodial State”, a coercive, brutal form of Welfareism that NO ONE will like. This court decision could be seen as just the most obvious sign to date of where this is going.
For those on the “Left”, I would hope that this might help point out that when you accept the principle of using force, through law, to take from the “haves” and give to the “have nots” (enforcing the fast offering at the point of the sword), you may find yourself not far removed from using that same force to make the “have nots” do what the “haves” want. It only stands to reason that government can claim to regulate that which it subsidizes. Likewise, if you subsidize pregnancy, you shouldn’t be surprised to get more of it, and from the very class of people least inclined or able to consider the immorality of living off others, and the responsibility to care for one’s own children. One of the reasons I woke up and fled from the socialism of my earlier beliefs as a young man, was my realization of the creeping and insidious totalitarianism of the Welfare State (which I initially embraced, unlike most “liberals” I have ever known), and the ultimate evil this leads to.
Like it or not, when we ignore the principle of human agency, evil *always* results, and grows unceasingly unless checked. You simply cannot get God’s results out of Satan’s methods. God’s plan is for those who “have” to *voluntarily* give to those who “have not”, and when we try to *force* that giving, we may initially “solve” the poverty issue (the poor are fed, clothed, and housed), but open a Pandora’s box of new problems. In our desire to solve these, but maintain our allegiance to the culture of enforced charity and equality, we create more programs, spend more money, etc., but only have more problems. Finally, in desperation (and for some, opportunism and lust for power), we resort to increasingly draconian means to force people to be “good” and “smart”, ignoring the fact that these people are only doing what the upbringing we have subsidized has taught them: you can have sex whenever and with whomever you please, and government will always pay for the results.
Finally, with regard to Obi-Wan and others who are so enamored of unelected judges making new law, in direct opposition to the people’s own wishes as manifested through actual written law (or lack of same), I wonder if such intelligent people would feel as enthused if their own mortgage company adopted this same doctrine? What if your bank decided that your mortgage contract no longer means what it did when it was written and signed, but “new circumstances”, unforseen at the time of the mortgage’s creation, trump the “guarantees” of the original document, and now your mortgage payment will be higher, the interest will be higher, the duration longer, etc. The Constitution is not “scripture”, it is a legal contract, and can only be changed in the manner the contract stipulates. Precedent may serve to illuminate our views of the document where the document is not clear, as precedent over time seems to imply the acquiescence of the American People, but if we say that judges can concoct new law from whole cloth, even contradicting the written text and clear meaning of the Constitution itself, what does this say about the continued vitality of *any* of our constitutional protections? How long can the Church continue its mission, in an environment of religious freedom, if the Constitution means, ultimately, whatever a five-person majority of the Supreme Court says it means? Has the Reynolds decision, or for that matter Dred Scott, faded that much from our memories? What happens when the courts decide that government’s “compelling interest” to protect against “sexual orientation” discrimination overides the First Amendment, and the Church and its institutions face harrasment for our hiring policies? What happens when “warning of the dangers of fornication, adultery, homosexuality, and other forms of immorality” becomes “hate speech”? We had better start thinking about what our responses are going to be such threats, or better still maybe we should work now to prevent them, before they end up slapping us in the face.
Comment by: Gary Cooper at May 10, 2004 01:57 PM
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I don’t necesarily feel that judicial activism is a bad thing,
but…
I don’t really see how scalia is seen as activist in the sense of interpreting or creating law.
I mean- Scalia is basically a hard and true defender of procedural due process. I think by nature that prevents activism- it defers to the legislature. Thams seems to be there as well. Thomas’s comment in lawrence v texas that he felt the law was a stupid one and if he were a member of the texas legislature he would vote to overturn the law- but he doesn’t feel strongly that it is unconstitutional.
likewise scalia’s arguments in casey- the state has the right to allow abortion on demand, BUT they aren’t required constitutionally to allow it.
Scalia may have an agenda- no question about it, BUT rather than being activist he is by definition defering rather than taking an active role in shaping law.
now, if it would serve scalia’s ends to view due process in a substantive manner would he? who knows. But to say he is being activist I think is problematic on the definitional level.
I’m really not a fan of Scalia’s political views. But, I thnk he is the best writer on the court, and largely the most consistent in his logic.
My problem with OConner and Kennedy is the complete lack of consistency in the logic they use to interpret the constitution, and how it seems to switch depending on the particular case. It is almost as if OConner just figures out what feels right and then makes the arguments for how to get there.
Although, Kennedy’s decisions lately have seemed to be much more consistent. His arguments in Lawrence seem to point to a new interprative standard that I really kind of like. Really, the largest problem with Lawrence is that Scalia’s argument that the logic employed by Kennedy would also make it seem that other laws regulating morality are unconstitutional. Kennedy denys this, but I don’t know why. I say go ahead and say- “yeah many of them likely are” and just stick with the very new but also retro standard of limited government power and that government must justify infringements on liberty rather than petitioners show a constitutional right. Stepping away from rights talk to an extent.
Which is also why I feel that maybe the constitution does provide a protection of the right to abortion- but the logic in Roe isn’t really that great
Comment by: Mike at May 10, 2004 08:26 PM
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Dear me. Gary presents us with such a wealth of latent contradictions that one hardly knows where to begin.
I shall try to take matters up in some organized fashion.
1) First, I am always taken somewhat aback at the recurrent trope about “unelected judges,” given that the majority of judges interpreting constitutional law in this country are either elected or appointed and re-elected. This is actually *not* an especially good thing, as it injects into the judiciary the same public choice problems that infect the legislature — there have been some truly atrocious cases in Arizona and Texas, for example. I rather *wish* the law was being primarily made by unelected judges, but it simply isn’t.
2) Second, the mortgage example is rather blatantly inapposite. The U.S. Constitution comprises a blueprint for a network of governmental institutions, not a “legal contract” of the sort that Gary asserts. The implications of adopting that analogy are quite mind-boggling. Who made the offer? When did I accept it? For what consideration? And how can it possibly bind non-parties?
Even if Gary is arguing some form of “social contract” theory, that is essentially an agency theory, not a contract in the sense that he is using the term.
3) But even assuming Gary’s contractual model for a moment, it would be entirely permissible for for one’s mortgage company to start varying terms of the instrument if the instrument contained some mechanism for doing so (in fact, my credit card company seems to do this with great frequency, because the instrument is designed in exactly that fashion).
The Constitution contains precisely such mechanisms, including the active participation of the judiciary in law-making. The power of common law judges had long been a check on the tyranny of the soveriegn, and the Framers fully expected that they would continue in that role. This is why our constitution has remained viable for the past two centuries, when other democracies were changing constitutions nearly as often as their citizens changed underwear (and in some countries, probably more often than their citizens change underwear) — the power of the U.S. judiciary to keep the document vital, dynamic, and relevant. Gerhard Caspar long ago did some wonderful comparative work identifying this as the great genius of the American system, and the great handicap of continental systems such as the German Constitutional Court.
4) Before leaving the contractual analogy, I note in passing that Gary’s theory of contractual interpretation, *as* a theory of contractual interpretation, is awfully impoverished — recall Corbin’s distinction between interpretation and construction, not to mention all the recent work by Ayers and others on incompletely theorized contracts — Gary’s static contractual approach fails to engage any of that.
5) The assertion that the Constitution is not scripture misses a great deal, on a variety of levels. There is actually a fairly strong argument under LDS doctrine that the Constitution is in fact a form of inspired writing. Setting that aside, the Constitution has, sociologically speaking, been referred to as the great American covenant, in the best Deuteronomic sense of the term, since that is the societal role it plays.
But my assertion is rather a more simple one, which is that the interpretive assumptions one adopts vis a vis one text are likely to carry over into the interpretation of another. Certainly all of the interpretive tools that the judiciary regularly uses in approaching legal texts — including those tools adopted by the ever-popular Justice Scalia — were developed in the context of scriptural exegesis.
6) Interpretive approaches aside, I am mightily puzzled by the “environment of religious freedom” comment, since of course there *was* no environment of religious freedom until the Supreme Court, in what Gary would doubtless call “activist” mode, invented the doctrine of selective incorporation and applied the First Amendment to the states. The Saints in Nauvoo seemed to think that the First Amendment ought to protect them from state-sponsored religious persecution, but that protection was a civil war, several amendments, and a lot of judicial “activism” in the future.
7) I have also long been puzzled by the invocation of the Reynolds and Dred Scott cases by those decrying “judicial activism” (Scott Card, for example, seems very fond of this trope), since those are in fact cases where the Court was at its least “activist,” essentially abdicating its role in order to acquiese in some exceptionally bad decisions of the legislature. The cry “Remember Reynolds!” or “Remember Dred Scott!” seems to militate in favor of more judicial involvement, rather than less. I quite agree with that sentiment, of course, but it rather seems to contradict the overall argument of those who chant the slogan.
8) So, too, the parade of horribles regarding sexual orientation and hiring — the compelling governmental interest standard Gary cites is a standard of judicial review vis a vis the legislature — and, in particular, judicial code for “we’re going along with the legislature on this one.” Speculating that it might one day override the Free Exercise clause posits a situation where the legislature is imposing an offensive standard on Church practice (which Congress has in fact periodically attempted to do in fair housing, employment discrimination, and some other areas) and where the courts have declined to stop them — precisely the situation where one would want some “judicial activism” to put the brakes on the tyranny of the majority. I entirely agree with Gary’s implication that it is the *elected* lawmakers we need to fear more than the unelected ones, but that once again that doesn’t seem too consistent with his earlier claims.
Finally, a note to Mike — I hope we all understand tht “deference to the legislature,” whether by Scalia or anyone else, is just so much hermeneutical chin music. There are some lovely recent cases where different courts, interpreting exactly the same language, reach diametrically opposed results by “deferring to the legistlature” — in one case, refusing to exclude from the ambit of a statute an item that was not explicitly excluded, all the while declaiming that it was for the legislature to exclude the item should it choose to do so — and in the other case refusing to include within the same statute the same item because it was not explicitly included, all the while declaiming that it was for the legislauture in include the item should it choose to do so — in each case, just interpretive sleight of hand intended to get the court where it wanted to go. It’s all in the wrist, really.
Comment by: obi-wan at May 11, 2004 02:45 AM