"Legal Progressivism" & Madison (cont.)

[Ogie Oglethorpe]

Tru dat. We are rather masochistic. Course the point is I speculate that most people hate the congress folk mainly because they feel themselves not represented by congress people and that the congress is entire out of step with their opinions.

Be that right wrong or otherwise.

[DaShi]

Hamilton held unique views on the relative power of the respective branches. It seems he was more often than not looking to increase the power of the executive and/or judicial at the expense of the peoples branch.

He'd have made a good republican.

[Zevico]

Anywho, I don't know about Federalist #37, but Federalist #78 (from Hamilton) seems to indicate pretty clearly that the idea of a living constitution was not anathema to the framers.

I respectfully disagree.

First, a source for those interested: http://www.constitution.org/fed/federa78.htm

To begin with, Hamilton states (at Federalist #78) that:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Progressive legal interpretation conflates the judicial power with the legislative power because it requires the judiciary to make and, indeed, in fact override and ignore those laws with which it disagrees. As I've said earlier, the judiciary's law-making role exists only to fill in the gaps where the law is ambiguous. Where the law is unambiguous, changing it from the bench is a usurpation of the legislative function.

Then Hamilton justifies and explains what will come to be called the doctrine in Marbury v Madison (which Imran, in a fit of fancy, thinks was a product of progressivism itself):

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.

Hamilton takes a few paragraphs to expand on the theme.

Then he begins the paragraph from which you quoted. I won't quote it in full yet. I'll just quote the first sentence:

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.

In other words, he is expressly stating that, apart from enforcing the Constitution, there are other means by which an independent judiciary secures the liberty of the public, and that he, Hamilton, intends to explain what they are.
He continues:

These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.

Now, Hamilton commends the judiciary's "firmness." What does he mean by this? Either
(a) That the judiciary secures liberty by ignoring the duly enacted law of the land--effectively writing it out of existence;
(b) That the judiciary secures liberty by ensuring the fair, credible and sound application of the law to the facts, rather than by bowing to the whims of the prosecution: for example, by demanding that the prosecution offer sound proof of a defendant's guilt before he can be convicted of an offence.

Let us see which is the more plausible understanding of Hamilton by reading the quotation in full:

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

In other words, it is the "temperance," the "firmness" and "integrity" of an independent judiciary which mitigates injustice of an unfair law.

The English expression "as sober as a judge" encapsulates this sentiment. Even unsound and unfair laws, when applied by a person of integrity, can have their effects "moderated." Not ignored, not overriden, not invalidated, but applied fairly and consistently by fair and consistent judges. Politicians know this, and they take it into account when they make laws. That is what Hamilton recognised.

The views expressed by Alexander Hamilton in Federalist #78 are quite openly in favour of a sensible, legalist and originalist construction of the Constitution. It is only that doctrine which properly leaves "WILL" to the legislature, the "SWORD" to the executive, and lastly, the matter of judgement to the courts.

By contrast, legal progressivism parcels WILL out to both the courts and the legislature, not out of respect for democracy but, to the contrary, on the premise that democracy is less important than some fundamental "right" or "value" to which the people have not assented, whether by constitutional amendment, congressional act, or otherwise, and which is merely the opinion of the judge on what is, in his view, a better policy than that already decided upon by the people.

[Zevico]

He'd have made a good republican.

What makes you say that?

[Hauldren Collider]

Hamilton believed in a more powerful federal government, not less. DaShi's comment is inane.

[Ogie Oglethorpe]

Its a not so witty attempt to call into the matter the allegation that Bush supported the unitary executive approach. As always to be taken with liberal doses of salt.

That and the allegation that repug justices similarly read and interpret statutes in accordance with the interpretation of the constitution.

[Zevico]

Its a not so witty attempt to call into the matter the allegation that Bush supported the unitary executive approach. As always to be taken with liberal doses of salt.

Well, he brought the Iraq and Afghanistan wars to a vote in Congress. Obama hasn't deigned to do the same with respect to Libya. He hasn't even defined the war against Libya as a war. Ergo, all Democrats hate the Constitution?

That and the allegation that repug justices similarly read and interpret statutes in accordance with the interpretation of the constitution.

If they did so they'd merely be doing their jobs. In fact in doing so they don't differ from legal progressives. Legal progressives are inconsistent: to them the ordinary rules of statutory interpretation apply to everything but the Constitution, which they change at will. It's an inconsistency they never bother to explain except by saying something like "the constitution is a really important law so unlike every other law which the judiciary doesn't have the right to change, the judiciary does have a right to change the Constitution."

[Ogie Oglethorpe]

Ergo, all Democrats hate the Constitution?

By definition, yes.

[Ogie Oglethorpe]

Well, he brought the Iraq and Afghanistan wars to a vote in Congress. Obama hasn't deigned to do the same with respect to Libya. He hasn't even defined the war against Libya as a war. Ergo, all Democrats hate the Constitution?

I'm sure that the passage of the 'unconstitutional' Patriot Act by Bush applies here and his ability to issue wiretaps (save it was similarly passed by Obama), perhaps the concept of issuance of signing statement on how the executive plans to administer or interpret the statutes (except that Obama similarly uses them), maybe it refers to the Bush admins insistance that executive reserves the right to apply torture and rendition (Oops Obama admin DOJ says the exact same thing).

[DaShi]

Its a not so witty attempt to call into the matter the allegation that Bush supported the unitary executive approach.

Reagun and Nixon too. And McConnell was about to hand over more power to Obama last week.

[DaShi]

Also, I wouldn't depend on political advice from ogie. He's the moron who thinks that gay rights aren't an issue in conservative politics and threw a hissy fit when someone did not call Paul Krugman a liar out of context. There were some stupid things he said about Obama too, but I can't keep track of them all.

[Zevico]

I'm sure that the passage of the 'unconstitutional' Patriot Act by Bush

Bush didn't pass the Act, but he did sign it. Congress passed it. With the support of the Democrats.
As to it being 'unconstitutional', that's another issue. To merely assert that without more isn't helpful.

applies here and his ability to issue wiretaps (save it was similarly passed by Obama)

With or without a warrant?

perhaps the concept of issuance of signing statement on how the executive plans to administer or interpret the statutes (except that Obama similarly uses them),

Two things. First, that plan has no legal effect on the statute. An executive plan is commendable--a sign of good planning. Nothing more. It doesn't affect how courts interpret the statute.
You may be referring to regulations promulgated by the government pursuant to a statutory authorisation. There is a legal doctrine known to American administrative lawyers on this issue (I am not one myself of course). The doctrine holds that a fair reading of a regulation by the executive branch, in so far as it administers it, should be given a degree of deference when interpreting the meaning of the regulation. That's peculiar to the American legal system as opposed to other common law countries which have no such doctrine. There is some sense to that I suppose as it creates certainty for administrative decision-makers, albeit at the expense of the public. Regardless that doesn't mean the regulations are validly authorised by the statute--it's merely an interpretation, which the court defers to, though it is not bound to in all cases. Not being an expert I don't know what the exceptions are.

maybe it refers to the Bush admins insistance that executive reserves the right to apply torture and rendition (Oops Obama admin DOJ says the exact same thing).

Them, and Clinton before them, and Bush before them, etc, etc, etc.
The clear implication, by the way, is that torture works.

[Ogie Oglethorpe]

Reagun and Nixon too. And McConnell was about to hand over more power to Obama last week.

Tremendous, the rest of the not witty pablum.

[DaShi]

With or without a warrant?

Without

The clear implication, by the way, is that torture works.

That's a poor conclusion to draw. You could reasonably say that they believed it works, but there still could be a variety of other reasons for that.

[Zevico]

Without [a warrant]

Then what are the terms of the authority granted, are there other warrantless wiretaps granted, and what are the methods of oversight if any?

That's a poor conclusion to draw. You could reasonably say that they believed it works, but there still could be a variety of other reasons for that.

Like what? Pixies in the water? All those times it worked? Or all those times it didn't work?
Torture can procure information. The question is whether it's more effective than non tortorous efforts to procure information and the answer is in some circumstances, yes. Whether that means we should use it is something else entirely. Torture can be part of a process of the normalisation of violence in society and this a dangerous phenomenon.