State constitutions, and the state courts that interpret them, have wide latitude to go farther than their federal counterparts do in protecting liberty. That opens up legal and political strategies for advocates of individual rights. Rich Esenberg of the Wisconsin Institute for Law and Liberty joins Caleb Brown in a Cato Daily Podcast to discuss. Earlier: links on related writings of Judge Jeffrey Sutton and Clint Bolick; “damaging” clauses. Also related: Federalist Society video panel last summer on “Early State Constitutions and Their Influence on the Legislative Branch” with Lynn Uzzell, John Dinan, Mark Graber, moderated by Julie Silverbrook; ConSource.org resource on constitutional history.
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When judges use their power to discover powers in their state constitutions “to protect liberty” in ways that Walter agrees with politically, that’s just fine with him. When they do it in a way that he disagrees with from a policy perspective, why that’s an outrageous example of overreaching. This sort of world view is why the number one priority of partisans for wanting to have their party win the presidency and hopefully control the Senate has become the control of judicial appointments.
This is the single most destructive feature of American politics today. Why don’t we simply skip the appointment process and just go to the current Wisconsin model where each party in a closely divided state nominates an ideological candidate who promises to look after the interests of his or her party and then we’ll see which party does best at turnout?
That’s an amusingly overwrought personal attack, considering that it’s 100% free of actual examples by which readers might judge for themselves whether positions I’ve taken on state constitutional matters are inconsistent, overly political or result-driven. And in fact the language of my post above is one that reserves judgment; to observe there are strategies here for public interest lawyers (of varying ideological stripes) is a simple truism that does not endorse any particular argument developed as part of these strategies.
Political polarization of state judiciaries is one destructive feature of American politics today. Another is the instinct to engage in personal attacks on the good faith of those who disagree with us, even when they’ve just posted something so anodyne it’s not clear what it would even mean to disagree.
I will accept brickbats from both sides in this donnybrook, by noting that everyone is in favor of a strong judiciary, and against an activist judiciary. A strong judiciary is one who makes rulings that support your side of the argument, and an activist judiciary one who makes rulings t’other way.
Bob
Bob, that’s no more accurate than the formulation we usually see in the media, that “activist” courts are ones that tell the legislative and executive they can’t or must do things. Sometimes it’s proper to tell the legislative and executive they can’t or must do things (when they are violating the law), and sometimes it’s not (when they’re not). The actual definitions are that “proper” courts are ones that understand the hierarchy — constitution, then statutes, then regs — and know that words mean things, and the other branches of government can’t write anything at the lower levels (statutes or regs) that violate the words of the level above it. “Activist” courts tell the other branches what to do (they must or they can’t) without linguistic basis. Such as making up “penumbras” and “emanations” in a constitution, or talking about the “intent” of a statute rather than its text.
Also Bob, I will give a personal example that contradicts your outcome-based view of “activist” courts. As a legal principle, I am for gay marriage. I would vote for it if I were I state legislator. As a citizen, I would vote for it in a state referendum. But it was wrong, wrong, wrong, and entirely “activist,” for the Supreme Court to mandate it in Obergefell, by seeing things in constitutional amendments that aren’t written in them, and hadn’t been spotted in there for the 150 years they’ve been on the books. The end does not justify the means.
“Political polarization of state judiciaries is one destructive feature of American politics today.”
On that point, see Scalia’s dissent in Casey.
“Another is the instinct to engage in personal attacks on the good faith of those who disagree with us, even when they’ve just posted something so anodyne it’s not clear what it would even mean to disagree.”
Although I 100% agree with the “overwrought personal attack” characterization (and especially the pointing out that no specific examples were cited), I think that the “good faith” of judges, governors or what have you is certainly open to question. If rule of law is to mean anything, it means that people with authority should grapple with the limits of their authority, even if they believe in their heart of hearts that something is a good thing. If they do not, that’s a species of arrogance that is the very opposite of good faith. The law presumes that none of us is wise enough or mature enough to “have all the answers.” Civility is important, but a virtue can be a vice if taken too far.
With respect to the original commenter, certainly the commenter understands that state constitutions have language that differs from the federal constitution? Obviously, many times that language is going to result in a more expansive interpretation. One example that many miss is a more stringent separation of powers, Well, wouldn’t that have some impact on how much discretion agencies have to interpret law? It probably should.