I will now jump into a debate that seems to have erupted between Steve Bainbridge and Bret Marston, with whom I have jousted (in friendly fashion) in the past.
the debate is over the issue of legislative v. judicial decision-making. I don't intend, at this point, to engage the full debate, but I would add to Bainbridge's point regarding legislatures v. courts, and that is the basic question of what the purposes of the institutions are. It is the job of legislatures to make the rules, and in a democratic society they ought to make those rules in accordance with the will of the people as filtered through elections (and yes, this is an imperfect filter). Courts are supposed to interpret the laws and determine their applicability to a given situation--as it is clearly the case that laws are often ambiguous.
However, given the debate in question (as outlined by Bret here, with links to others), it seems that the problem is not as much one of whether the moral judgment of courts are to be preferred to those of legislatures, but rather one of what their proper powers and roles should be. In the current debate, it seems that there has been a substantial conflation by all involved of the issue of legislating versus applying or interpreting the law.
Of course, the conflating of legislating and interpreting is the fault of the courts themselves, who have taken to making up their own rules, which is really what I think that Steve Bainbridge is objecitng to.
Now, I do see the role of the courts as being a bulwark against tyranny of the majority-but hopefully under the aegis of the Constitution. And yes, this raises a host of interpretation problems. At a minimum, however, courts ought not just decide on their own such matters, but should be constrained by the law.
No doubt there is much more to be said on this topic, but I will leave it at that for the moment.
(And I will confess that I struggle with the appropriate standard for the use of courts as the guarantor of minority rights in the face of majority objections.)
Completely off-topic: I remember you as being a "reciprocity" blogger. I've just linked to you on my blog, and I'd appreciate it if you'd return the favor. Check it out, see if it suits you okay.
Completely ON topic:
This is one of those times when the use of State ratification conventions is warrented.
In 1933, Congress passed the 21st amendment with the stipulation that the state legistlatures leave the job of ratifications to specially elected conventions.
This was a national referendum based on the electoral college principle. As there is a precident, no one can actually object and the laws governing them are already on the books.
It's simple, quick and easy. Remember, the 27th amendment took over 200 years to be ratified.
Posted by: Ericl at February 17, 2024 08:57 AMIt's occasionally amusing to realize that we seem to never seriously consider impeachment as a defense against legislating judges; then it becomes sad to realize that an attempt to impeach such a judge (or, say, all of the Ninth Circuit) would be politically impossible.
Posted by: Dave at February 17, 2024 11:05 AMWell, one can't be impeached for one's rulings, but only "bribery, treason and other high crimes and misdemeanors" (Article II, Section 4). All Article III denotes is that judges serve "during good behavior".
Posted by: Steven at February 17, 2024 11:11 AM