-----Original Message----- From: lbo-talk-bounces at lbo-talk.org on behalf of andie_nachgeborenen Sent: Thu 9/20/2012 12:48 AM To: lbo-talk at lbo-talk.org Subject: Re: [lbo-talk] Chicago mayor takes legal action over strike
The federal judiciary has been politically conservative, no doubt, on balance and over time. I'm not sure that the founding era is particularly relevant or illuminating today. But the current right wing activist SCOTUS is certainly as typical or more of the federal courts than the liberal activist Warren Court era, and unfortunately, more than the judicially conservative courts of the New Deal Era.
Judicial conservatism is a matter of deference to the legislature, narrow holdings that decide cases on the most limited possible grounds and stick to precedent rather than holding forth with broad rules rand lots of obiter dicta, and avoidance of constitutional questions where possible.
The federal judiciary has made a lot more law than it is officially formally entitled to, starting with Marbury v. Madison, Chief Justice Marshall's assertion of a power of judicial review that the framers left out of the Constitution. Sometimes, as with Antitrust, Congress has kicked the ball to the courts. Other times, the federal courts have just made law. State courts gave increasingly made less law than they might be entitled to do, leaving legislative decisions in the hands of the legislature.
Section 1331 (28 USC 1331), allowing the federal courts to hear cases where a claim arises under federal law, is a jurisdictional statute. I'm not aware of any notable common law like judicial legislation that it has fostered.
Section 1983 (42 USC 1983), the Anti-Klan Act, the most important of the Reconstruction Era civil rights statutes, is not particularly a jurisdictional statute. It allows for lawsuits to recover damages or obtain injunctive relief from the governments of the US and the several states for violation of a person's constitutional rights. (For the last 120 or so years, suits for damages have not been permitted against the states except through rather arcane measures.)
1983 also has not been a font of federal common law lawmaking. Interpretation of the Constitution has the prerogative of the federal courts since Marbury, since Congress has no power to correct the courts in constitutional law, unlike statutory law. However it is rather misleading to think of that as common law lawmaking. Constitutional interpretation is more like necromancy.
Sent from my iPad
On Sep 18, 2012, at 12:56 PM, "Wythe Holt jr." <wholt at law.ua.edu> wrote:
> The federal judiciary was established precisely to skewer progressive politicians and their proposals. There was no federal judiciary under the Articles of Confederation, and several states -- where public and private debts were both enormous and difficult to repay given the depression which raged from about 1781 through about 1791, and the outflow of hard money from the US during the Revolution -- enacted measures reducing debts or postponing their repayments or lessening the value of the debts through issuing inflated paper money. For example, some states refused to pay interest during the eight-year period of the Revolution; South Carolina legislatively rendered all debts originally payable, say, in 1787, now payable in three installments (1787, 1788, and 1789). Every single state enacted one or more laws attempting to alleviate the debt burden, largely thanks to newly won democracy and the farmer majority in most states (farmers being pressed by the debts).
>
> Merchants, large planters, and other members of the elite went to a Constitutional Convention determined to end this state of affairs -- to end, that is, both the reneging on debt, and the control of "their" new nation by farmers and others who were deeply in debt. Their new fundamental document placed many debt- and currency-related restrictions on the states (wcould no longer make laws which "impair[ed] the obligation of contract," for example), and set up a broadly if quite vaguely empowered new judiciary to make sure that creditors had a friendly forum -- as opposed to state courts -- where they could sue for repayment of debts due to them. The judiciary was designed to uphold the creditor-friendly, elite-friendly, anti-democratic new Constitution (look up the word "democracy" in the index to Farrand's Debates, and follow up the citations, to see just how opposed to democracy the Framers were) and the elite-friendly, business- and merchant-friendly government that w!
> ould be set up under it. The Washington-Hamilton administration was just such a government, reveling in taxing ordinary people at higher effective rates than wealthy people and businessmen, in repaying debts in silver if possible, and -- when the people began to rise against this tyranny -- stomping harshly on them in the so-called Whiskey Rebellion of 1794.
>
> Appointments to the federal judiciary were not in 1789-90, and have not from then till now (except for the distinct aberration of the New Deal/Fair Deal years, and a couple of mistakes made by Eisenhower in appointing Warren and Brennan), been of people friendly to debtors or to ordinary folks. For the most part, federal court rulings do not favor debtors, the poor, ordinary people, or genuine democracy even today. While the passage of progressive legislation in the Congress is difficult for many reasons, I think it indisputable that the federal judiciary is the most reactionary, the most regressive portion of the federal government. And while constitutional cases are rare, many of the relevant holdings of the USSCt (especially in the period from the Civil War through the First World War) have been clearly against soft money and debtors and in favor of big business and creditors. They have overturned MANY progressive state laws, and still do so regularly. Further, whi!
le!
> the common law prevails in the states (despite much legislation), state courts have not been notoriously progressive either -- and when they have slipped into some progressive stances (as some did during the early Progressive Era and during the Great Depression), appeals of their decisions into the federal courts (usually to the Supreme Court, but other avenues from state court to federal court jurisdiction exist too, and more of them existed during these eras than they do today) usually resulted in reversal or restriction.
>
> The common-law status of state courts has not helped ordinary folks much either. The hallmark of common-law adjudication is that the judges openly, as a part of their duties, entertain and sometimes accept new "causes of action," that is, common-law judges can MAKE law. But much of what they have made has been anti-debtor, discriminatory against ordinary people, and in favor of elites, especially fiscal and business elites. Also -- perhaps it is little known -- but the federal courts under two Reconstruction jurisdictional statutes (42 USC sec. 1983, and 28 USC sec. 1331) have long acted pretty much like common-law courts, making new laws. Originally this step was taken, by the Supreme Court in 1908, to satisfy business and elite interests, not the interests of ordinary people, and it is still not used much for ordinary people.
>
>
>
>
>
> -----Original Message-----
> From: lbo-talk-bounces at lbo-talk.org on behalf of andie_nachgeborenen
> Sent: Tue 9/18/2012 11:56 AM
> To: lbo-talk at lbo-talk.org
> Subject: Re: [lbo-talk] Chicago mayor takes legal action over strike
>
> I'm not sure I see your point here. suggested that judicial conservatism is a shield against a reactionary court and for progressive legislation. I said it is a big problem that we have an activist, right wing Supreme Court. Given that you agree about this, why say that judicial conservatism is only good in an ideal world? Do you want more judicial activism of the sort that you describe?
>
> I think it is not so much the judiciary as other features of the US Constitution that limit the passage of progressive law, such as the entrenched two senator per state rule. Most law in this country is not federal, however, and state constitutions and judiciaries as well as legislatures pose different issues. Prop 13 was a state ballot initiative, and no one would call it progressive, but that is a source of law not available at the federal level. And constitutional law cases are very rare at the federal level and fairly to very rare at the state level.
>
> By the legal framework of the country, do you mean the federal constitution? But that is not a source of or limitation on most law that we have. Generally speaking we have a common law system, created by wealthy English judges long before the Constitution, even if we rely a lot more on legislation and a lot less on judge made law.
>
> Sent from my iPad
>
> On Sep 18, 2012, at 10:44 AM, Wojtek S <wsoko52 at gmail.com> wrote:
>
>> Andie: "It's not a bad thing for thew judiciary to be judicially
>> conservative, deciding cases in a limited way, and leaving it for the
>> legislature to make the law."
>>
>> [WS:] Agreed, in the ideal world. But this is the United States,
>> where constitution - or perhaps the inability to modernize it
>> http://www.nytimes.com/2012/02/07/us/we-the-people-loses-appeal-with-people-around-the-world.html?_r=2&ref=us
>> - severely limits passage of progressive laws. Even if mildly
>> progressive legislation does pass from time to time, it is later
>> gutter by the judiciary as "unconstitutional" (cf. the medicaid
>> provision of Obamacare or Proposition 103 in California). I am
>> pretty convinced that if Obamacare had a public health care provision
>> it would be struck down as "unconstitutional" in no time. It goes
>> beyond a few reactionary SCOTUS justices - it is the fact that the
>> legal framework of this country was designed by 18th century slave
>> owners and businessmen to protect their property and has not changed
>> very much since then,
>>
>>
>> --
>> Wojtek
>>
>> "An anarchist is a neoliberal without money."
>> ___________________________________
>> http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
>
> ___________________________________
> http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
>
> ___________________________________
> http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
___________________________________ http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk