I'd love to discuss with others here something related.
I have lately (to my surprise) been drawn by some talks of Antonin Scalia on Youtube. Far from being repelled (or amused at his standing alone) as I was years ago by his coming down on the opposite side of judgements I thought were socially just and good, I now come to understand better what he was doing. At least if you believe his talks.
After listening to his talks (and then thinking back to his opinions), I understand he was trying to make sure that the Constitution was followed to the letter of the law, and that if the people were unhappy with it, let them change it so that it reflected the popular desires. But let it follow that process. Not have social or political will creep its way in via individual judges' or courts' determination something was now "acceptable enough" that it could be ruled to have evolved and be constitutional at the present time.
And that the writers of the Constitution were trying to prevent disaster as much as trying to enable progress -- and that we should be careful when we stray from the words encoding that goal, because when you do that it opens up all sorts of unintended consequences.
(Hence the connection to this OP's story + comments about law as source code.)
This really opened my eyes about what that aspect of judicial conservatism is about. Not that I agree with all of its philosophy or tendency (in politics) to court a certain sector of the vote, for example. But it did arouse in me a respect for the guy, to know that for example:
If you start relying or putting upon certain institutions (the courts) in society responsibilities or goals to effect the change you want, that may not always be the right thing to do, although it may be the easy / politically expedient thing to do at the present time. Because there may come a day when that power might go opposite to what you wanted (or more importantly, what is right). And maybe what this country's founders set up was consciously a decision to keep things from going off the tracks when too many people thought some rules should simply be imposed by judges because it was the popular thing to do.
Other unintended side effects may include: politicization of the judiciary, which we know all too well today.
I would encourage anyone curious to listen to some of his talks (especially the Q&A). Honestly, it really did open my eyes to hear about it. Maybe I'm getting more conservative in my old age, but when you're a person responsible for others and some process, you start to appreciate this kind of thinking.
https://www.youtube.com/watch?v=fkChru9L3xA&t=4s
(skip all the preface, to his speech at 4min, or skip to the Q&A as the talk is mainly about what the role of morals is in the judiciary/government)
I used to be a great admirer of the US constitutional arrangements (even though I'm not an US citizen and I've never been to the States), in fact I have a paperback edition of the "Federalist Papers" on the bookshelves that sit just behind me as I'm writing this comment, but lately I've come to see things in a very different manner.
More exactly, I've come to realise that a legal/constitutional arrangement that supports actual human slavery for 70-80 years after having been put in place is maybe not that great to begin with, and I've also come to realise that one of main reasons for its "PR success" during the last two centuries was the fact that the US as a country got to be economically (and then militarily) successful. It is a perfect example of "might makes right" (in this case economic might). As a (failed) counter-example the legal system of Haiti from the late 1790s-early 1800s was a lot more "illuministic" and "human friendly" but because Haiti failed economically (and then politically) as a state all that didn't matter in the end.
Well, I sympathize with that sentiment, and it's a valid criticism that such a system tolerated an evil for so long.
However, slavery was a much greater evil than just one country or one actor, and it ran large parts of society and was accepted or overlooked by many people across many countries for a long period. How is a system to deal with something that many, many people are ok with at the time but some people recognize is not fair / immoral?
What should a government system be set up to do to check / repudiate that? Something that many people are willing (mistakenly) to accept as normal? And, did our system do the best that could have been done (and compared to others) to fix it? And what does that system mean for other, but different, problems that may come along?
No one said it was perfect, and certainly no system has handled every issue perfectly, far from it.
The question is what should you set up as the general system that can operate and handle problems with long-run good outcomes. If a society had rapidly course corrected and fixed that problem, what would it mean for future things it rapidly course corrected and also fixed? Maybe not in a way that was good?
I may dare ask, how did your country fare by that measure? Did it tolerate slavery, and for how long? Did it accept or deal in the profits of slavery or other exploitation, or overlook it? Does it do so now, for other issues?
We're just talking in political theory, right? Sitting on our ends of the internet, theorizing. Let's talk about it. What system is better?
> More exactly, I've come to realise that a legal/constitutional arrangement that supports actual human slavery for 70-80 years after having been put in place is maybe not that great to begin with
The alternative would have been forming the United States without the southern states, because they would never have agreed to join. Then the Americas would presumably have been too weak to win the War of 1812.
>More exactly, I've come to realise that a legal/constitutional arrangement that supports actual human slavery for 70-80 years after having been put in place is maybe not that great to begin with, and I've also come to realise that one of main reasons for its "PR success" during the last two centuries was the fact that the US as a country got to be economically (and then militarily) successful.
Constitutional modifications can be painfully slow for those on the receiving end of injustice, but I’m not sure what the alternative is or if it is better. Would a living constitutional philosophy or activist judiciary ended the practice earlier?
One of the beauties of having an unwritten constitution and instead an approach that vests the constitution in a Parliament, as we do here in the UK, is that nothing ever ossifies.
The constitution is a living breathing thing that evolves as the Parliament evolves. Of course that conversation has been particularly intense over the last few months as the UK removes itself from the EU. But it is working - if a little messy.
Which shows that an Anglo-Saxon oral constitution still works has it has done for a thousand years.
My theory on the Brexit trouble as a Canadian is that David Cameron screwed up this system by trying to emulate other systems: he made fixed elections dates and used a referendum.
Both broke parliamentary tradition. Normally, if a govt loses on a matter of confidence, there would be an election. Instead Teresa May’s zombie govt lost and lost and lost and still kept going.
Meanwhile the parliament was beholden to a referendum result, which has no precedent in British tradition.
Further, it was nonsensical to hold a referendum to do something you do not want to do. Normally the way referenda are used elsewhere is to test popular support for a policy the govt actually wants to do.
> One of the beauties of having an unwritten constitution and instead an approach that vests the constitution in a Parliament, as we do here in the UK, is that nothing ever ossifies.
Unfortunately as the current situation w.r.t the Good Friday and Withdrawal Agreements highlights, this is still limited by the respect of parties for the rule of law, domestic or otherwise. Our Attorney General & govt. should know better their acts suggest otherwise.
As high-minded as that sounds, I do not elevate that narrow and arbitrary ideal above the lived experience of the people.
Say what you want about judicial activism, or whatever you want to call it, labels aren't important. I'd rather the risk of destabilization than perpetually reaffirming all the injustices and shortcomings we carry with us.
You may say the judiciary has no role in that process, but I say no other ideal is as important as human/animal lived experience. And judicial conservatism is antithetical to that ideal when the base is unfair, in whole or in part.
Obviously many rights should he conserved, but if I have to choose, I think conservatism beyond those key rights only serves the already priveleged, and limits what is possible (obviously, that's the whole point).
Well, I guess that's a difference in philosophy then. I find myself agreeing with him that sometimes, people can be quite wrong and bad, and that's in fact a greater danger than the benefit of people being right and good.
And protecting society from going down the wrong path -- which often leads it towards permanent irrecoverable damage -- is as important, if not more important, than enabling people be able to so quickly fix something that temporarily solves it, but sets up the society for greater disorder in the long run.
Perhaps judges could have fixed injustices faster. Or different styles of democracy could have. But they could also cause injustices faster too.
Take a different example. People are in some no small measure in approval today that abortion should be legal, when it involves (in some other people's opinion) the killing of human beings. (Just to avoid any controversy /s)
How would you handle that one? Is that to be given the same process as what you just proposed to cure that injustice?
You see the point about having a system that does well across many issues, not just one, right?
This absolutism is what causes more harm, because people fail to appreciate any progress when things haven’t gotten 100% of the way there.
The reason it causes harm, is because it discourages people from going after real incremental steps, because they see the mountain that is in front of them.
E.g. there are currently more slaves in the world than at any time in human history. With that mentality, we could have said, ‘oh, we can’t stop all the slavery in the world, so it’s not worth ending it here’
I’m not American so I have no right to having a dog in this fight, but I’ll say this: on either side of a constitutional debate, there is an endless litany of making caricatures of sophisticated people & their (in this case, informed & binding) opinions. You don’t ascend to the highest bench in the land by being a dork.
When someone is an intelligent, disciplined person - as someone who becomes a Supreme Court Justice certainly is - you can assume their deeply held opinions are very carefully reasoned. Originalism / textualism for interpreting the Constitution is much more straightforward than letting judges make up new laws.
Even Scalia talks about how hard is to amend the constitution. He wished that amendment process would have been easy. Right now, any amendment requires approval from 2/3 of both Congress and Senate, and ratification from 38 states. It is really hard to make any amendments in the current scenario for two reasons: 50 states (14 states in 1791) and politicians being defenders of the special interests.
If the amendment process were easy, judiciary wouldn't have become political.
That's a bigger ask than you might at first think. Scalia is noted for his concurrence in Raich (https://en.wikipedia.org/wiki/Gonzales_v._Raich) in favour of federal marijuana prohibition despite its apparent incompatibility with the interstate commerce clause.
> I understand he was trying to make sure that the Constitution was followed to the letter of the law, and that if the people were unhappy with it, let them change it so that it reflected the popular desires. But let it follow that process.
That view can itself be radical. McCullough v Maryland (https://en.wikipedia.org/wiki/McCulloch_v._Maryland) was decided in 1819 -- well within living memory of the constitution's drafting -- and cemented an expansive understanding of federal powers that was arguably at odds with a strict textualist interpretation of the constitution. Adopting a strictly textualist argument today that would refute centuries of legal tradition is just as significant of a change as the constitutional amendments called for by Scalia-style arguments.
(As a practical matter, also look at the pressure points of change in the US system: it takes double supermajorities to enact a constitutional amendment, but only majority control over a sufficient period of time to appoint the Supreme Court. The latter is by far the path of least resistance.)
On the other hand, you can punt this problem even further back: the United States has no codified set of principles for statutory or (especially) constitutional interpretation.
> And that the writers of the Constitution were trying to prevent disaster as much as trying to enable progress
Note that they didn't do this. The constitutional order envisaged in the 1780s broke down with the US Civil War. If you treat the US as having a single continuous political and legal tradition (a reasonable point of view), then that tradition has both its successes and failures.
> Other unintended side effects may include: politicization of the judiciary, which we know all too well today.
Politicization of the judiciary is unfortunately a historical default. Keeping the process apolitical requires a broad, cross-partisan consensus towards either a particular model of neutral judiciary or towards appointment processes (not seen in the US) that remove judicial selection from direct political interference.
Mind you, those of radical political ideologies will point out that an "apolitical" judiciary is still political -- just one that reinforces the status quo and all injustices that entails.
I have lately (to my surprise) been drawn by some talks of Antonin Scalia on Youtube. Far from being repelled (or amused at his standing alone) as I was years ago by his coming down on the opposite side of judgements I thought were socially just and good, I now come to understand better what he was doing. At least if you believe his talks.
After listening to his talks (and then thinking back to his opinions), I understand he was trying to make sure that the Constitution was followed to the letter of the law, and that if the people were unhappy with it, let them change it so that it reflected the popular desires. But let it follow that process. Not have social or political will creep its way in via individual judges' or courts' determination something was now "acceptable enough" that it could be ruled to have evolved and be constitutional at the present time.
And that the writers of the Constitution were trying to prevent disaster as much as trying to enable progress -- and that we should be careful when we stray from the words encoding that goal, because when you do that it opens up all sorts of unintended consequences.
(Hence the connection to this OP's story + comments about law as source code.)
This really opened my eyes about what that aspect of judicial conservatism is about. Not that I agree with all of its philosophy or tendency (in politics) to court a certain sector of the vote, for example. But it did arouse in me a respect for the guy, to know that for example:
If you start relying or putting upon certain institutions (the courts) in society responsibilities or goals to effect the change you want, that may not always be the right thing to do, although it may be the easy / politically expedient thing to do at the present time. Because there may come a day when that power might go opposite to what you wanted (or more importantly, what is right). And maybe what this country's founders set up was consciously a decision to keep things from going off the tracks when too many people thought some rules should simply be imposed by judges because it was the popular thing to do.
Other unintended side effects may include: politicization of the judiciary, which we know all too well today.
I would encourage anyone curious to listen to some of his talks (especially the Q&A). Honestly, it really did open my eyes to hear about it. Maybe I'm getting more conservative in my old age, but when you're a person responsible for others and some process, you start to appreciate this kind of thinking.
https://www.youtube.com/watch?v=Ggz_gd--UO0
https://www.youtube.com/watch?v=TRS-jdgHok4
https://www.youtube.com/watch?v=fkChru9L3xA&t=4s (skip all the preface, to his speech at 4min, or skip to the Q&A as the talk is mainly about what the role of morals is in the judiciary/government)
https://www.youtube.com/watch?v=aXSGDXbc9ZA (very entertaining)
And besides all that, what a personality and entertaining figure, and powerhouse of knowledge. I wish I had appreciated more of this thinking earlier.