You are currently browsing the monthly archive for October 2015.
Very interesting article from The Stanford Daily with short recap on multiple instances where people challenged Supreme Court decisions. See author information at the end.
Resistance to the Supreme Court’s authority is nothing new. In 1803, the landmark case of Marbury v. Madison established the Court’s power to review the constitutionality of actions by other branches of government. But the case also highlighted the Court’s inherent weakness. The lawsuit asked whether President Thomas Jefferson’s new Republican administration had to honor the last-minute appointment of a justice of the peace by the outgoing Federalist president. Chief Justice John Marshall knew that if the Court ordered the Jefferson administration to install Marbury as justice of the peace (as he’d been promised by John Adams), Jefferson would simply refuse to follow the ruling. So Marshall wrote an opinion declaring that courts have ultimate authority to interpret the Constitution, but declining – on technical legal grounds – to actually order Jefferson’s administration to grant Marbury his position.
Resistance to the interpretive authority of the Supreme Court has occurred regularly ever since. After an adverse decision in Worcester v. Georgia (another Chief Justice Marshall classic), President Andrew Jackson is said to have responded, “John Marshall has made his decision; now let him enforce it!” In the 1950s, the Court outlawed school segregation in Brown v. Board of Education, then had to issue another opinion in Cooper v. Aaron calling for “the obedience of the States,” after southern states asserted the power to ignore Supreme Court decisions with which they disagreed. Cooper asserts judicial supremacy – that is, the power of the Supreme Court to serve as the ultimate authority over the meaning of the Constitution, binding on both the federal government and state governments.
These cases of resistance demonstrate the judiciary’s weakness as an independent branch of government. Judges must rely on other government officials – in the executive or legislative branches of the federal government, or in state or local governments – to implement and enforce their orders. When those other divisions of government disagree with the Court’s decision, the Court may be forced to curtail its own actions (as in Marbury). Or the Court might hope that it has enough support among other divisions of government to carry out its directives (as in Brown, which was enforced by President Eisenhower’s deployment of the Army’s 101st Airborne Division to ensure the African American students’ safety, and later bolstered by congressional passage of the Civil Rights Act).
Of course, the judicial branch has substantial powers to encourage compliance. For one, lower courts may hold steadfast objectors in contempt of court. Such specific contempt orders are almost certain to be enforced, therefore helping to bring intransigent officials into compliance. That’s how Kim Davis wound up in jail. Courts also have the lesser-known ability to fashion other kinds of solutions. For instance, the judge in Kentucky could have forbidden Davis from issuing marriage licenses, effectively transferring her power to another state official or ordered the county to withhold some portion of Davis’s salary attributable to marriage-licensing.
But the fact remains that these solutions are, in the end, words on a page. When push comes to shove, somebody other than a judge must escort the holdout to jail. Thus, at bottom, the Court’s decisions are constrained by the views of other branches and levels of government. Unless the Court stays within the bounds of what other government officials consider plausible, legitimate views, it is powerless to carry out its holdings. So while the Court – comprised of unelected, lifetime-tenured judges – is often vilified as undemocratic, it is ultimately accountable to the people and their representatives.
The Supreme Court (and conventional wisdom) would say that everyone does have to follow the Supreme Court’s interpretation of the Constitution. But challenges to that view – from history, legal scholars, and modern Kim Davises and Ted Cruzes – abound. And despite the controversy and occasional firestorm, that debate is probably a good thing. It reminds us that the Court, with “neither force nor will,” takes part in an “ongoing dialogue between and among the branches of Government.” In the end, it’s your democratically elected representatives who shape what vision of the law is followed.
Brittany Jones is the president of the Stanford Law Review. Alex Twinem is one of the Stanford Law Review’s managing editors. Michael Qian is one of the Stanford Law Review’s executive editors. Danny Kane is one of the Stanford Law Review’s senior editors. Contact them at bjones2 ‘at’ stanford.edu, atwinem ‘at’ stanford.edu, mfqian ‘at’ stanford.edu, and dkane ‘at’ stanford.edu.
Below is a comment that was left to this article, and my reply to it.
This is what is normal for liberals.
Page title: “Bill Maher Skewers Conservative “Instant Heroes” Like Kim Davis and George Zimmerman” September 26, 2015
AlterNet Staff / AlterNet chose this quote for the lead: “Republicans have to stop being surprised when their instant heroes turn out to be embarrassments,” Maher said.
Says the man who is so lacking in character that he makes fun of sexual abuse of children – and is not embarrassed of the fact, but proud.
William Dalton says (in a comment at TAC):
September 22, 2015 at 3:04 am
“Justice Oliver Wendell Holmes wrote, “The best test of truth is the power of the thought to get itself accepted in the competition of the market.” But is this true? A decade after his beer hall putsch failed in Munich, Adolf Hitler’s Nazi party won the largest number of Germans ever to vote in a democratic election. He had succeeded in the marketplace of ideas. Did that democratic ratification make Hitler’s ideas true?”
Pat Buchanan knows history well enough to know that Adolf Hitler’s Nazi Party had not won a plurality of seats in the Reichstag, nor had President Hindenburg been convinced to appoint him Chancellor of Germany, because Hitler had “succeeded in the marketplace of ideas”. A majority of Germans considered Hitler’s ideas to be ridiculous, even when they gave his party a victory. They did so because, in a country in which, under the Weimar Constitution, it had proven impossible to elect a moderate government which could maintain the peace and suppress radical militia roaming the streets, and faced with a choice of government led by either Nazis or Communists, a plurality chose, and a majority approved, the party they saw to be the lesser evil.
It is not far distant from the choice Americans currently have, between a party representing warmongers eager to institute a police state for the protection of “national security” and a party dedicated to instituting a welfare state guaranteeing each citizen, and non-citizen, all the necessities of life, governed by coalition of sexual libertines and worshipers of Baal and Ashtoreth. When either one or the other gets elected, it won’t be because they have been successful in selling their wares in America’s “marketplace of ideas”. It will be because they have succeeded in scaring the bejeezus out of Americans at the prospect of again empowering the alternative.
I would add that the choice today is different. First because, for practical purposes, the US has not one, but two major neocon parties – the only difference is that one is slightly a bit more neocon than the other.
Obama and Clinton did not dismantle the military/industrial complex – nor had any intent or demand from their constituents to do so. Clinton played golf at times during the Rwandan genocide was happening – a testament to just what monsters liberals are. US arm sales that spread death and destruction to millions of civilians worldwide continues unabated – and receives robust support from liberals and Democrat voters. And there is probably no difference between Hillary and Bush regarding war and imperialism, while there may have been a very small one between Bush and Bill.
Seven years into the Obama administration and the Patriot Act police state is just as much implanted as when Bush went to clamor for its existence. In a little Twitter feud this week, a liberal shot back that the maintenance by Obama and all the Dems of the Patriot Act and the current US police state is Bush’s fault, since Bush started it.
These people actually vote and in their crazy minds, only Republicans are neocons, no matter how much both are exactly for the same kind of things. It’s no consolation, but at least Republicans don’t engage in this level of 1984-ish twisting of reality about themselves. I always find people who lie on such barbaric levels disturbing – specially since it’s collective and involving millions of people.
In the minds of Democrats, the fact that they can point their fingers at Republicans for doing the same thing they do entitles them to absolve themselves of all responsibility regarding the evil they are and do. They are the American version of “Eichmann in Jerusalem”, the responsibility for every neocon act of a liberal lies with Bush/Republicans and they never acknowledge anything they do is actually their own doing.
Lastly, Dalton above fails to mention that the welfare liberal state is a state full of sexual violence and is currently implementing the destruction of fundamental civil rights, like freedom of speech and the right to an ethical society in the sphere of personal relationships, so it certainly does not provide “the basic necessities” citizens need.
What Americans can choose from are two very corrupt political parties, one which is particularly insane for not admitting its neocon attitudes and doings (the Democrats) and the other one which is a little bit more straightforward, while being just as destructive for most practical purposes.
This is “democracy” in the 21st century. Much like Rome a couple of millennia ago.
I saw this small exchange on some thread somewhere on the vast interminable Internetniverse:
Nice but what about Jesus?
He was kidnapped by evangelical Protestants centuries ago, and suffers from Stockholm Syndrome by now (at least according to his captors).
There’s this commenter over at TAC, Charles Cosimano, who can be witty and smart at times, and usually that’s what most of his comments try to be (although usually a bit more witty than smart). He had a serious comment (September 25, 2015 at 12:13 pm), however, that I found interesting, an excerpt of which is copied below:
Here in the midwest the Pope … might as well still be in Italy for all anyone cares.
Reiff is of course wrong. Cultures do not die. They are transformed. Other than that, Rod has it right.
People do not make decisions that matter in their lives on the basis of religious teaching. They make the decision and then find the proof text to justify it. What is interesting now is that people are not going to Christianity for the proof text any more. In that sense, the broader culture is, de facto, post Christian.
For large portions of the culture, Christianity carries no special authority. By that I mean if you say to X, “A Christian would not do that,” X is likely to say, “Probably not, but who cares?”
Now, it is a mistake to apply that to the Pope in the US for a very simple reason. The US is overwhelmingly non Catholic. The Pope carries with him no special authority for the bulk of the population. He is easily ignored. The rot of Christianity goes far deeper than what is happening to the Catholic Church which
never really had much cultural weight here to begin with. It is reflected in the decline of the mainline Protestant denominations which did control the culture and who still matter in ways that
the Catholic Church can only look upon with envy.
The question now is what is going to replace Christianity as the determiner of Western, particularly US, which is the only place that really matters, culture.
I don’t think that’s really a question to where there’s any doubt. We already know what has replaced Christianity – it’s the deformed, perverted, and violent culture of liberalism.
Savage West + savage capitalism = savage sexuality (homosexuality/bisexuality + porn + promiscuity + sexual abuse + sexual harassment + STI epidemics + adultery epidemics + divorce + abortion as contraceptive + transgender + prostitution + etc.)
And liberals are like mullahs – ignorant, narrow-minded bigots who stifle everyone else and destroy society while thumping on their porn, because for them, being deformed and sexually violent represents freedom and progress.
And like mullahs, the thing that liberals hate most is freedom of speech – because that permits dissident voices to be heard. It means their nasty ideology is criticized. It means all the violence and harm they do in the world is not entirely covered up by their own lies and denial.
This is why liberalism is just another form of any dictatorial religion. It’s oppressive, repressive, and so very destructive.
I think we are advancing rather fast to a state where Twitter et al will censor all viewpoints that attack liberalism. Mullahs and dictators are like that. They hate to be challenged.
Then, more specifically on how liberalism is really the very expression of the savage and brutal capitalism that organizes the West and the rest of the world today, there was this comment from KD (September 25, 2015 at 9:33 am):
I was reading Turchin’s War, Peace an War where he discusses Southern and Northern Italy, and argues that Southern Italy is a capitalist wash, at best family business with large Mafia contingent.
In contrast, No. Italy has produce medium-sized corporations (family-based), but nothing like a GE or Microsoft capable of planetary organization. These larger structures only occur in particular societies (generally Protestant/Confucian).
It will be interesting if American corporations will continue to be able to function as secularization progresses. Note, it may be that MTD and therapeutic managerialism may be superior to
Protestantism: the materialism, status consciousness, conspicuous consumption, commodity fetishism divorced from any spiritual elements of Calvinism. In other words, MTD may be the new order because it is adaptive to an international system of resource exploitation and consumption, in a way that Christianity, with its focus on the family and its symbolic particularity could not be.
And we’re off! To another locked Twitter account…
The #gaymafia sure hates freedom of expression. After Twitter locked my first account, @Alessandra_Ref, they now locked @Alessa_Ref. Well, at least I’ll create another one with a better name. Because I had put Ketch Upton for the name – a play on splitting up the word ketchup, which I like. But at the moment I did that, I didn’t realize Ketch sounds masculine.
Why did Twitter lock my account? The message given this time was something like “we’ve noticed some unusual activity on your account”. Yes, like critical thinking. Liberals find that awfully unusual.
Or maybe: didn’t march in lockstep with the #gaymafia.
“Hate speech” against sodomy.