24 February 2005

"This Proud Preeminence"; Justice Gibson, revisited

I've decided to stay on the subject of the constitution for the time being. It occurs to me--and I understand that I'm not making any sort of breakthrough here--that, since the court's power to be a tyranny of black-robed psuedo-prophets is rooted in the Marbury decision (5 U.S. 137 [1803]; 5 U.S. 137 [Cranch]), it would be useful to examine the logic of Justice Marshall's position. But since the work has already been done, I desire that the laborer should have his work displayed. Here, in an abridged form, is Justice John Bannister Gibson's logical rejoinder to tthe notion of judicial review, written in a dissent in Eakin v. Raub, 12 Sergeant & Rawle (Pennsylvania Supreme Court) 330 (1825).

The specific issue before the Pennsylvania Supreme Court is of no interest today, but Justice Gibson’s dissenting opinion is considered by many (including, for whatever it's worth, myself) to be the most effective rejoinder to Chief Justice Marshall’s argument for judicial review. See what you think.

All emphases were added by me.

Gibson, J. [dissenting].

... I am aware, that a right to declare all unconstitutional acts void ... is generally held as a professional dogma; but, I apprehend rather as a matter of faith than of reason. I admit that I once embraced the same doctrine, but without examination, and I shall therefore state the arguments that impelled me to abandon it, with great respect for those by whom it is still maintained... .

...The Constitution and the right of the legislature to pass the act, may be in collision; but is that a legitimate subject for judicial determination? If it be, the judiciary must be a peculiar organ, to revise the proceedings of the legislature, and to correct its mistakes; and in what part of the Constitution are we to look for this proud preeminence? Viewing the matter in the opposite direction, what would be thought of an act of assembly in which it should be declared that the Supreme Court had, in a particular case, put a wrong construction on the Constitution of the United States, and that the judgment should therefore be reversed? It would doubtless be thought a usurpation of judicial power. But it is by no means clear, that to declare a law void which has been enacted according to the forms prescribed in the Constitution, is not a usurpation of legislative power ... .
... But it has been said to be emphatically the business of the judiciary, to ascertain and pronounce what the law is; and that this necessarily involves a consideration of the Constitution. It does so: but how far? If the judiciary will inquire into anything beside the form of enactment, where shall it stop? There must be some point of limitation to such an inquiry; for no one will pretend that a judge would be justifiable in calling for the election returns, or scrutinizing the qualifications of those who composed the legislature... .

But the judges are sworn to support the Constitution, and are they not bound by it as the law of the land? In some respects they are. In the very few cases in which the judiciary, and not the legislature, is the immediate organ to execute its provisions, they are bound by it in preference to any act of assembly to the contrary. In such cases, the Constitution is a rule to the courts. But what I have in view in this inquiry, is the supposed right of the judiciary, to interfere, in cases where the Constitution is to be carried into effect through the instrumentality of the legislature, and where that organ must necessarily first decide on the constitutionality of its own act. The oath to support the Constitution is not peculiar to the judges, but is taken indiscriminately by every officer of the government, and is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty; otherwise it were difficult to determine what operation it is to have in the case of a recorder of deeds, for instance, who, in the execution of his office, has nothing to do with the Constitution. But granting it to relate to the official conduct of the judge, as well as every other officer, and not to his political principles, still it must be understood in reference to supporting the Constitution, only as far as that may be involved in his official duty; and consequently, if his official duty does not comprehend an inquiry into the authority of the legislature, neither does his oath.

But do not the judges do a positive act in violation of the Constitution, when they give effect to an unconstitutional law? Not if the law has been passed according to the forms established in the Constitution. The fallacy of the question is in supposing that the judiciary adopts the acts of the legislature as its own; whereas the enactment of a law and the interpretation of it are not concurrent acts, and as the judiciary is not required to concur in the enactment, neither is it in the breach of the Constitution which may be the consequence of the enactment; the fault is imputable to the legislature, and on it the responsibility exclusively rests. In this respect, the judges are in the predicament of jurors who are bound to serve in capital cases, although unable, under any circumstance, to reconcile it to their duty to deprive a human being of life. To one of these, who applied to be discharged from the panel, I once heard it remarked, by an eminent and humane judge, "You do not deprive a prisoner of life by finding him guilty of a capital crime; you but pronounce his case to be within the law, and it is, therefore, those who declare the law, and not you, who deprive him of life."

. . . But it has been said that this construction would deprive the citizen of the advantages which are peculiar to written constitution, by at once declaring the power of the legislature, in practice, to be illimitable. I ask, what are those advantages? The principles of a written constitution are more fixed and certain, and more apparent to the apprehension of the people than principles which depend on tradition and the vague comprehension of the individuals who compose the nation, and who cannot all be expected to receive the same impressions or entertain the same notions on any given subject. But there is no magic or inherent power in parchment and ink, to command respect and protect principles from violation. In the business of government, a recurrence to first principles answers the end of an observation at sea with a view to correct the dead reckoning; and, for this purpose, a written constitution is an instrument of inestimable value. It is of inestimable value, also, in rendering its principles familiar to the mass of the people; for, after all, there is no effectual guard against legislative usurpation but public opinion, the force of which, in this country, is inconceivably great. Happily this is proved, by experience, to be a sufficient guard against palpable infractions. The Constitution of this state has withstood the shocks of strong party excitement for thirty years, during which no act of the legislature has been declared unconstitutional, although the judiciary has constantly asserted a right to do so in clear cases. But it would be absurd to say, that this remarkable observance of the Constitution has been produced, not by the responsibility of the legislature to the people, but by an apprehension of control by the judiciary. Once let public opinion be so corrupt as to sanction every misconstruction of the constitution and abuse of power which the temptation of the moment may dictate, and the party which may happen to be predominant, will laugh at the puny effort of a dependent power to arrest it in its course.

For these reasons, I am of the opinion that it rests with the people, in whom full and absolute sovereign power resides to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act. What is wanting to plenary power in the government, is reserved by the people for their own immediate use; and to redress an infringement of their rights in this respect, would seem to be an accessory of the power thus reserved. It might, perhaps, have been better to vest the power in the judiciary; as it might be expected that its habits of deliberation, and the aid derived from the arguments of counsel, would more frequently lead to accurate conclusions. On the other hand, the judiciary is not infallible; and an error by it would admit of no remedy but a more distinct expression of the public will, through the extraordinary medium of a convention; whereas, an error by the legislature admits of a remedy by an exertion of the same will, in the ordinary exercise of the right of suffrage-a mode better calculated to attain the end, without popular excitement. It may be said, the people would probably not notice an error of their representatives. But they would as probably do so, as notice an error of the judiciary; and, beside, it is a postulate in the theory of our government, and the very basis of the superstructure, that the people are wise, virtuous, and competent to manage their own affairs; and if they are not so, in fact, still every question of this sort must be determined according to the principles of the Constitution, as it came from the hands of its framers, and the existence of a defect which was not foreseen, would not justify those who administer the government, in applying a corrective in practice, which can be provided only by a convention... .


Gibson's confidence in the people is touching. And it certainly makes sense that the branch that is most representative of the people ought to be the court of last resort. Besides, how does one branch of the government get to be the final authority just by asserting that it is?
22 February 2005

The Logic of a "living, breathing document"

We keep hearing it said that our Constitution is a living breathing document. Usually, those who spout this garbage do so as if the point is not even arguable. Recently, a caller "reminded" Laura Ingraham that "our Constitution is a living, breathing document."

The name of this blog is "philologous." It is an adjective, referring to me as one who is loving of learning, literally a lover of words. I do love words. I love reading them, and writing them. So I spend a great deal of time with documents of various sorts. By logical extension, my love for learning makes me a lover of logic and of analysis. Let us look briefly at the phrase, "living, breathing document". We ought to be able to recognize this assemblage of words--to be quite blunt--as excrement, feces, crap. (As one who is philologous I believe in using the best possible word. Now, no other words, for me, intimate just precisely the sort of ooze that "living, breathing document" really is.)

My love for words, means, among other things, that I believe that words mean things. And while, as in any language, a single word can have a variety of meanings, at base, it ought to function as what we might call a term of art. That is, a word used in a specific domain (i.e., subject) has, with reference to objects in that domain, a single meaning. That being the case, since, in discussing the constitution, we are discussing a form of government the terms of which are inscribed on paper, the phrase, "living, breathing" has no meaning. The exegesis of a document is not physiology. The constitution is not a living system; it is a piece of the law, the fundamental law of the land. There will be no putting a stethoscope to the constitution to check its health. The constitution does not inhale; it does not exhale. It has no circulatory system.

Of course, one may say that I am being too literal, too simplistic. All I want to say in response to that is that if the phrase, "living, breathing" is not being used literally, then those who use it are engaging in poetry; and the constitution is not poetry. It is law. Even so, as a term of art, one might say, the phrase simply means that the meaning of the document, like all other things, must change in order to continue to be relevant. And this is the problem with the logic of the position: no evidence can be offered to support the proposition. The constitution, while claiming for itself the status of law of the land, makes no claim to be a "living, breathing" document. So, in making the argument, one has left the constitution and is not arguing a point of constitutional law, but of literary criticism. Furthermore, the logic of this position requires us to believe that the document can only be relevant if it contains somewhere within it (e.g. the "penumbras of the bill of rights") the solution to every modern problem, if only we would allow this "living, breathing" document to speak, like the oracle at Delphi, through the black-robed prophets who sit on the court. If you reject this assumption, as I do, then the constitution is relevant because it provides for a government which can offer solutions to modern problems.

If the Constitution really is a "living, breathing" document then there is no constitution. If the meaning of the text just changes over time, then the text really doesn't say anything. Consider the right to an abortion. Today, the "living, breathing" document gives us this right. But this same right could be gone tomorrow. (And it will be, says the left, if Goerge Bush gets his nominees on the court.) And right there, they reveal that they do not believe this "living breathing" document excrement either. Right there, they reveal that they really do understand that it is not the document that is living and breathing, but the justices who "interpret" (we should really say, translate) the oracle. But I digress.)

This same right could be gone tomorrow because the "living, breathing" document, whose meaning changes over time, could (it is at least hypothetically possible, is it not?) change back to a document that no longer protects or recognizes that right. (Is it not the least bit interesting that this "living, breathing" document is a left-liberal, and not a right-conservative, document?) And so it is with all of our rights. This "living, breathing" document could change into a document that no longer gives us the rights to freedom of speech and peaceful assembly, or of the press, or religion. Why this living, breathing document could once again give us the right to own slaves. It could give law enforcement officers the right to interrogate suspects without "Mirandizing" them. It could take away our right to trial by jury. This "living, breathing" document could become as arbitrary a ruler as the worst tyrant--all the while hiding from simpletons the fact that the real tyrants are the black-robed pretended prophets who claim to be translating for us the will of this living, breathing, riddle speaking oracle.

Oh, wise, living, breathing, paper oracle: What shall I have for lunch today? I await the court's answer.
16 February 2005

Politicians are almost funny about our money

According to Howard Dean Bush's budget does two things: (1) it brings Enron style accounting to D.C.; and (2) it proves that we can't trust Republicans with our money.

I don't know much about who first did it, but worse-than-Enron style accounting was brought to D.C. long ago; so if Bush's budget does bring that type of accounting to D.C., it would be an improvement over the current type of accounting.

Second, I don't want to trust anyone but me with my money. I want to keep more of it and do with it as I think best. Besides, once the government has my money, it is no longer my money; it is the government's money. In paying taxes, we do not place our money with a fund manager. (If my money manager handled my money the way any government handles money I would fire him.)

If Dean weren't serious, he would almost be funny.

Now, while on the subject of taxes and whose money it is, I heard just today (16 Feb 2005) that, because people are buying more fuel efficient cars, government revenues are down in California. Of course, governments don't like having to do with less, so California, I hear, is considering a tax plan which will tax auto owners on the basis of mileage.

Apparently, it will work something like this. Autos will be fitted with GPS locators, which will track mileage. When you go to refuel, a computer in the gas pump will poll your car's on board computer and you will be charged a gas tax according to your mileage. (And, in true liberal fashion, your on board computer will also tell the gas pump computer how much money you make so that you can be taxed on the basis of your income. Obviously, if you are wealthy, you ought to pay more; and if you are poor you ought to pay none.)

It occurs to me that, more than likely, the politicians behind this plan are liberals. The liberals, as we all know, are critical of the Patriot Act because of its curtailments of our civil liberties, like the right to privacy. Now, they want to track private citizens going about their lives for no other reason than to be able to tax them. As I understand (or would, at least, like to believe), normally, the government would be prohibited from GPS tracking someone without a search warrant. Clearly, for liberals, no civil liberty trumps the government's liberty to tax.

This tax idea reminds of the "road tax" idea in the movie Dragonslayer (with Dennis Quaid, Sean Connery and Jason Isaacs). And, like that idea, it would be kind of funny--if this were a fantasy movie.
11 February 2005

"Cute"--What more could Rumsfeldt have said?

A lot of people (including myself) are getting true enjoyment from Rumsfeldt's handling of that "cute" reporter from the International Herlad-Tribune--the one who suggested that, because recently he has had some praise for NATO, he might "give up the whole idea of coalitions of the willing." But I do think that he let her off a bit too easily.

If I were Secretary of Defense (Perish the thought!), here's how I would have handled her--for whatever it may be worth:

"Dear sweet lady. Please allow me to take precious moments out of my limited funds of time and patience and give you just the tip of the iceberg-sized lesson in logic you so desperately require. My past criticisms of NATO were not universal, as if I were to have said that, 'For all NATO, NATO is worthy of criticism and no praise whatsoever.' My past criticisms were of specific policies and decisions, not all policies and decisions, past, present and future. In the same way, my present praise is not universal, as if I were saying that, 'For all NATO, NATO is worthy of praise and no criticism whatsoever.' My present praise is of specific recent decisions and policies, not all policies and decisions, past, present and future. And that praise does not negate my past criticisms. And so dear lady, there is no logical inconsistency between my past criticisms and my present praise such that I must surrender the idea of a coalition of the willing. In much the same way that one goes to war with the armed forces one has at the time one goes to war, one also goes to war with those allies who are willing to go to war at the time one goes to war. Now, go home, sit in the still quiet of your flat, and re-evaluate your life."

I suppose, since he could hardly have gone into all that, "Cute" is just about as good a response as any. It's also better than, "Zounds! What a dazzlingly stupid woman you are! Next question, please." (He must surely have been tempted--even for just a moment.)

Incidentally, "zounds" (short for "By His wounds") is my favorite Shakespearean interjection.

Virtual pornography?

"I will set no wicked thing before mine eyes..." (Psalm 101.3).

My daughter attends a Christian university. This semester she is required to read, Love in the Time of Cholera, which, she informs me, contains some explicit sexual narrative.

She objected to reading this novel, because, as a Christian young woman, she wants to keep her thoughts as pure as possible. She and another student tried to gather other students in the class to object, as a class, to being required to read what they could only describe as a pornographic novel. Alas, no one wanted to join their protest. One of the students even accused them of trying to engage in censorship. I suppose that, for this student, obviously a staggering intellect, your right to publish includes the right of having people forced to read you! (I'll try to keep an eye on this brilliant example of the Christian mind at work: he'll be a Supreme Court justice some day. Liberal, of course.) But I digress.

When my daughter and her classmate brought the matter to the professor, the professor's reaction was that the novel was award winning. I cannot recall which award it was, Nobel, Pulitzer, something like that. But it was award-winning; and no matter what the contents, it was going to be read. This professor provides another fine example of the Christian mind at work: award-winning novels trump spiritual discernment and the attempt of right-headed young ladies to keep their thoughts pure.

People who don't know me would probably not guess this, but I am no prude. I drink a little more than my wife would like. I still enjoy a good smoke from time to time, either in the form of cigarettes or a pipe. I also have sex; I am married, after all. I have told my daughter that, after she is married, she too can have sex.

I'm no prude about sex because I find no prudishness in Scripture: "He went into her" is a fairly frank description of the sex act.

However, there is a difference between being frank, and Bibilical, about sex, and being pornographic. The Song of Solomon is a very sensual--and sexual--book. And yet we would be hard pressed to write a script--if one could call it that--for a pornographic film based on the Song of Solomon. So, although I am no prude, there is still something to be said for keeping one's thoughts pure. Still more to be said about it when one is trying to keep one's thoughts pure at a Christian university and finds one's professor and one's classmates working against oneself! (I know it's a Christian university: it says so right in the name.)

But why such a big deal about a novel? It's not as if she were being asked to view pornography, after all. But isn't it? In fact, I think it is a bit worse. It's tantamount to being asked virtually to create pornography.

Think about the difference between reading, say, The Lord of the Rings trilogy and watching the movie. In reading it, we use more of our brains than in watching it. That is because, in watching, we are entirely passive: there is no text to decode, nothing to imagine. But when we read, we re-create in our imaginations the world encoded in the text. As an acquaintance of mine has said, "When you read fiction, you are the cinematographer."

Being asked to read the sexually explicit, is being asked to re-create in our minds the action encoded in the text. It is to ask that we make ourselves the cinematographers of a porno flick.

Is that what a Christian university ought to be doing?

In the end, my daughter and her classmate, who continued to press the matter with their professor, succeeded in persuading the professor to allow them to substitute another book for Love in the Time of Cholera. Good for them.
09 February 2005

"Little Eichmanns"?

To Ward Churchill:

Eichmann got a trial before he was executed. The Little Eichmanns in the towers on 11 September 2001 did not get even that much.

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About Me

James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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