In the same political science class for which I wrote the Liberty Code, I need to do a bio on a Supreme Court justice who served after 1950.
Personally, I don’t know of any SCJ’s after 1950 that were any good. So I’m asking for one that doesn’t suck, if you know of any. Preferrably, one who respected state sovereignty or leaned toward libertarianism or classical liberalism in general.
None. None at all. The last decent Supreme Court Justice was appointed prior to 1933.
Going to the lower standard <i.e. one that doesn’t totally suck>. Hmmmmnnn. Even then, it is hard to pick one out.
Probably the last decent appointee was Owen Josephus Roberts, who served from 1930 to 1945.
Does it have to be about one you like? What about coming up with the worst and trashing him?
True. Any decent SCOTUS justice at this point would have to do nothing but dissent, since every case since at least 1933 has relied on false premises.
There is actually one decent judge in the wings who would make a decent Justice. That would be Janice Rogers Brown of the District of Columbia circuit. Not perfect by any means. But better than probably any other judge in the federal court system.
As for the worst justice in the system. I could probably not single out a “worst” judge. Probably 15 to 20 Justices tie for that honor.
Frankly the Supreme Court Judges since the New Deal are a pathetic lot. Either they are “conservative” and nearly always defer to the authoritarianism of state and federal legislatures or they are “liberal” and will invoke (rarely) their anti-democratic power (that is not an insult) on issues of civil liberties.
That said I think Earl Warren was worth something. He was very active in striking down various restrictive laws. Yet he totally ignored economic rights and utterly failed at limiting the growing power of the Federal congress, which is damnable enough and I strongly disagree with his decision in the case Reynolds v. Sims.
I imagine I will get some flack for listing him as the best Supreme Court Judge since 1950.
Yes you will. He effectively destroyed whatever state sovereignty was left after the Civil War and the Wilson and Roosevelt administrations, which is really the only separation-of-powers that matters. And Gideon v. Wainwright was an absolutely awful decision. Made up out of whole cloth.
I take it you have read Raoul Berger? Well in that case there might be no point in arguing with you about it since your view of the intent of the fourteenth amendment is so different from mine. I don’t believe that decision came out of whole cloth since if you read the ratification debate in their entirety in congress and before the state legislatures (not to mention the chronological details in them) you will find Raoul Berger selectively quoted those proceedings and left out the internal progression of the debates. The fourteenth amendment was intended to be a very broad protection for liberty.
Now as far as state rights go, yeah I am all for them in relation to the power of the Federal congress and President. Even Calhoun thought that state nullification applied to acts of Congress that were unchallenged or held up by the Supreme Court. In so far as simple judicial proceedings on issues NOT originating from Congressional legislation he specifically stated that the Court would be the protector of the constitution within the states, hence a state could have a tariff or ex post facto law struck down by the court. The Fourteenth amendment merely added to the power of the undemocratic Judiciary. Of course it did not outlaw secession which is another issue in relation to state sovereignty. Technically if a state disagreed with the decision of the Supreme Court they should be able to leave the union but if they remained they had to follow it. All in all States are still governments and dont deserve any special love from us if you ask me. I just done get this paleoconservative love affair people have nowadays.
Did the fourteenth amendment come about in a revolutionary as opposed to legal manner just as the American revolution did? Yes it most certainly did I wont argue with that but it did not demand a socialist state it simply centralized civil liberties into the federal judiciary and congress thereby allowing for a federal minimum of civil liberty that states could choose to increase upon if they so chose.
The 14th Amendment was never duly ratified. The southern states rejected it. So the North sent down their thugs, overthrew the legitimate southern governments, installed puppet carpetbag regimes and puppet regimes “ratified” the 14th. A ratification obtained under duress is NOT valid. The 14th Amendment is NOT part of the Constitution of the United States and all legislation based on the 14th is null and void and all court decisions based on the 14th are ineffective. No, I am not against civil rights and in fact have drafted a replacement for the 14th amendment, as follows:
Article ??
Section. 1. All persons born to lawful citizens of the several States or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the several States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.
Section. 3. Each State in this union posesses the inherent and inviolable right of secession from this union. Neither the United States, nor any State shall obstruct or retaliate against any State for exercising its right of secession. Any seceding State shall not be liable for any debt owed by the United States and the United States and any seceding State shall negotiate for transfer or removal of the property of the United States from such State.
I do not disagree that the 14th amendment came about by illegal means. But I also have little sympathy for the South as well as the North after reading “Emanicpating Slaves, Enslaving Free Men” by Jeffery Hummell. He stated that the Civil War was both the culmination AND at the same time the repudiation of the Spirit of the American Revolution by both sides.
Would your proposed amendment allow for anything the equivalent of lochner era jurispudence or the Pierce V. Society of Sisters decision? For instance I have ZERO faith in my state, the Commie Wealth of Massachusetts. I presently cannot afford to move and the only thing protecting me from my states extreme legislative interventionism is that they are not allowed to put up trade barriers (which I assure you is not enough since the rubberstamp courts allow for all sorts of trade barriers) as well a rare amount of more antiquated lochner era decisions that have not yet been overturned by post new deal courts. For instance if not for this left over lochner jurispudence, this state would most certainly outlaw homeschooling to benefit the teachers unions. Also if Robert Bork and Raoul Berger had their way (and the fourteenth amendment definitely included that the first amendment would apply against the states) and the first amendment was not applied then we would have liberal defamation laws such as in Canada that would destroy free speech. It is easy to say that I could simply vote with my feet but with a state that taxes the crap out of me making my ability to move extremely hard as well as limiting my job options due to heavy regulation I think that it would be a little idealistic to see that as an option. Just look at the tiny Central American States with their high tariffs and even European states. Decentralization of a government does not mean they will be more Libertarian inclined. Anyway I must sign off for now but i look forward to discussion this with you tomorrow, Mark B. I would like to keep it civil if we could. Thanks for the input.
I agree that both sides, North and South, were well less than saintly in there approach. Of course, the South had slavery. But the North had black codes that were as if not more repressive than black codes in the South, particularly in Lincoln’s home state of Illinois. And no where in the U.S. could blacks be citizens.
My amendment would allow the Federal Government to provide civil rights protections, if those were needed. The crucial difference between my amendment and the 14th amendment is that the 14th amendment created something new. It created United States citizenship. Prior to the 14th, you were a citizen of the state wherein you resided ONLY. My amendment would return to the previous situation.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
<Amendment 14>
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
All persons born to lawful citizens of the several States or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the several States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The two versions are pretty much the same, I just get rid of United States citizenship, which in itself creates opportunities for federal power grabs. I eliminate language in Section 2 that was rendered obsolete by the subsequent passage of Amendment 15, plus the obsolete reference to “Indians not taxed”. Section 3 is obsolete and thus deleted. Also, I eliminate the very disturbing language that constitutes Section 4. Particularly the first line which reads as follows, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” SHALL NOT BE QUESTIONED. Most arrogant and tyrannical line ever to appear in a governing document.
Another difference is my version clarifies the problem concerning “birthright” citizenship. In my version “place” of birth is irrelevent. What is relevent is that you were born to citizens, whether in or outside the country.
It should not, however, change the general interpretation regarding the extension of the bill of rights onto the states. That should remain the same.
I would say that is an improvment and I like the abolishment of a federal citizenship independent of the states. I am curious would the ninth amendment apply upon the states in this amendment as modern jurispudence believes? The reason I ask is becaue if it did not certain things, such as the homeschooling that I spoke of and excessive property regulations could not be protected by a federal judiciary if the ninth amendment was not incorporated into your amendment.
Of course a state could still secede if they disagreed with the judges decision but states stand to gain more in the union (a properly limited union of course) than out of it, where the burden of a military and lack of access to other states markets are a disincentive to leaving. That is why no states fully seceded until Lincoln (a fully regional candidate) was elected.
As far as the North in the civil war, I totally agree the that most Northern states were more racist than the South. I do not kid myself and think that the North went to war for the Fourteenth amendment or to save African Americans from slavery. They wanted to get their tariff revenue and mantain their international position for future imperial adventures.
Just to be on the certain side, I could modify and extend that amendment. Homeschooling is something that should be dealt with specifically. So how about:
Section 4. The first eight articles of amendment to this Constitution, shall be construed as being binding upon the States, as well as upon the Congress.
Section 5. Neither the Congress, nor any State, shall make any law which shall in any way abridge the right of parents to direct the education of their children, nor shall abridge the right of parents to homeschool their children. Homeschooling families shall not be required to notify the State of their homeschooling status, nor shall the Congress or any State enact any law regulating homeschooling. No State shall enact or enforce a compulsory attendence law. The Congress shall neither regulate, fund nor subsidize public or private education in any manner whatsoever.
Even granting that, all the14th Amendment did was incorporate the federal constitutional protections into government action at the state level. The federal “right to counsel” does not mean “the right to counsel at taxpayer expense,” and never did. There are no “evolving standards” of rights in constitutional jurisprudence. If you want something different than what the plain text and intent of the drafters indicates, then you need to go to the legislature. If judges want to legislate they need to run for Congress or the statehouse. These are bedrock principles of limited government that Warren flouted. Again, one of the worst.
Byzantine, I am curious how you view the Ninth amendment. Even if it only applied to the Federal government like it used to, that amendment leaves broad discretion up to the courts. Do you think that the Ninth amendment is an “Ink blot” as Robert Bork has said?
As for the Gideon case I think it makes sense in the context of Minarchism but not Anarchism. Under Minarchism you have a tax funded judge with a state appointed jury pool (that is sometimes compensated) and on top of that you need a fair trial. How would that Trial fit the objective of fair if you could not afford a lawyer. This is hardly a massive extension of the state into peoples lives (in the minarchist context) but merely serves a procedural issue for something that the state is meant to do. Provide well functioning and fair courts as well as police forces, all to serve the goal of protecting freedom and property.
Another thing worth pointing out is that the judiciary has always been organized and dictated too for procedural issues by the higher courts. So most states have their supreme court controlling the organization and rules for the court process and the Supreme Court has this authority as well on the federal level but sometimes the state level as well. Supreme Courts do not just decide cases they are essentially managment as well and they do this through case law as well as through deployment of funds within their branch of government. So all in all the Gideon decision was far from a revolution.
Again I cannot stress enough that Warren is NOT my favorite Supreme Court Justice, but when looking from 1950 to now I dont have many good options.
Let’s not forget there are several different methods of interpreting the Constitution from a conservative perspective. Originalism, Textualism and Strict Construction come to mind.
Now again about Gideon V. Wainwright, many states already had public counsel for those who could not afford it at the time of the ratification of the Sixth amendment and they believed they were merely instituting what they had in place on the Federal level. It did vary amongst states though hence that is why they did not apply any of the bill of rights upon the states until passage of the Fourteenth amendment. A few cases from earlier United States Supreme Courts also increased this right on the state level more and more after the Ratification of the 14th. Also independently of their state legislatures many state supreme courts stated that for trial to be fair public counsel was needed. Gideon V. Wainwright was part of a gradual application started by earlier courts.
Now Byzantine I have a hypothetical question for you. If a state had a new complex taxation or regulation that acts as a protective barrier against interstate trade (but it is not explicilty a barrier) and the courts don’t see it or strike it down does it make it constitutional? After all It is not a literal state tariff which is what the constitution empowered the federal judiciary to strike down. So should the court be able to strike it down or should the court keep it up? This is based on a real case by the way but it was not under Chief Justice Marshall.
To specify lets say this regulation is a tax of $36 on the axles of both in state and out of state trucks that used this states roads.
Now this is really pounding this point into the ground but I think this gives a better perspective of how courts operate and their procedures.
We all know Judges preside over trials and because of this they have the ability to exclude evidence when they think it is inappropriate. For instance a judge can assign certain duties to one side or the other to present a particular reason and explain it more fully or they can demand greater leniency for one side or the other. All the while these judges are aware that the case can be appealed on procedural grounds, constitutional grounds and for reasons of bad verdicts, by their superior courts.
In connection with this judges used to appoint counsel for people for a slew of reasons when facts were presented to them and this was how it was in states who did not even have a set law for appointment of counsel like other states did. As a matter of fact some counties in Florida had court appointed counsel at the time of Gideon v Wainwright. All Gideon V Wainwright did was to take it out of the lower court judges hands and make it mandatory to ensure equal protection of the laws, a fair trial and to prevent arbitrary decisions by lower courts over the judicial process.
To see what rights the people retain, you have to look at the common law at the time the amendment was drafted. Right to counsel at public expense is nowhere to be found in it. All the drafters wanted to do was make sure their enumeration of certain rights didn’t lead to an exclusion of others. So I somewhat agree with Bork in that the 9th is more good legal draftsmanship than anything else. Congress remains perfectly free to grant whatever rights it wants; that is part of democratic rule, and the check on that is that the judiciary can tell the other branches they can’t violate their own charter. But judges inventing procedural rights that appear nowhere in the plain text or the drafters’ intent are just legislating according to the values of the elite lawyer-class. It is anti-democratic and violative of the principles of limited government.
I’ll grant you there may be compelling reasons for public criminal defense, but that is a matter for the legislature to take up, as Scalia and Thomas would point out. Of course, those two have their contradictions as well. I’d take them over Warren but I do see your point re: Jim Crow, criminal procedure.