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A Tri-Cameral Legislature?

Has the Supreme Court abandoned its role as a third branch of government?

It often seems that way.



Carl Pham wrote:

I dunno, I find Manzi's argument naive. In the first place, it isn't fair to characterize even the most extreme judicial interpretations, complete with penumbras and emanations galore, as turning on the meaning of exceedingly concrete words like "four" or "majority." They turn on much more subtle questions about the meanings of sentences, about which reasonable men really can disagree.

Furthermore, this is no accident. Madison deliberately wrote the Constitution in a somewhat terse, ambiguous way, because it was indeed his intention that the precise meaning of some of its sentences be worked out by some kind of democratic process (involving a tug of war between all three branches) after ratification. In part, he did this because he knew being more explicit would provoke strong opposition to ratification. You might say he was being a bit Obamalike, a little vague about the detail in order to keep his (pro-ratification) coalition together.

Secondly, it just isn't the case, despite the mighty protestations of all the lawyers, that judges ever really just interpret the law, or can. They're always operating within the social norms of when they were selected, and in which they were raised. They're human, it's inevitable. Perhaps they are even more susceptible to unconscious motives derived from their mores, since they are trained to think they are above all that. It's somewhat the way the TV network news has tended to be more susceptible to partisan bias because they're trained to think they're above all that, so it doesn't even occur to them ask themselves: am I biased? Likewise, it doesn't even occur to the typical judge to ask himself: am I deciding this case in part because of my internal moral code, and not really the way the law reads?

I don't think the Framers were ignorant of these facts, so I don't think they really imagined the judicial branch would just interpret the written words on the pages Congress publishes. They knew very well that the judicial branch would, in essence, legislate in somewhat the way the Roman magistracy legislated, and they accepted this as desirable. They would not have been overly impressed with passionate complaints from the mob about "our robed masters" since they were pretty comfortable with the concept that society's "natural leaders" a.ka. robed masters can and should impose civilized behaviour on the mob.

To be sure, the Jeffersonian "revolution" of 1800, and the Jacksonian sequel of 1828, changed much of that.

Josh Reiter wrote:

It was always my impression that the framers constructed an amalgamated federal system to maximize the idea of checks and balances. We have the democracy represented in the Legislature. The king/dictatorship in the executive. The oligarchy in the Judicial.

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About this Entry

This page contains a single entry by Rand Simberg published on June 30, 2008 3:36 PM.

The Thirties Again? was the previous entry in this blog.

What's New In Private Rockets? is the next entry in this blog.

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