What Happens When the Law Runs Out?

I've been reading up on the Political Question Doctrine in my Fed Courts studying, and I wanted to share some of my thoughts (this started in an e-mail thread with my study group).

In hard cases—many of the ones that get to the Court—there's a line where the text of the Constitution and the other interpretive tools judges use just run out. Where, in effect, the law has just run out. This is what happened, for example, in Boumediene with the issue of habeas corpus for Guantánamo detainees (once you start discussing "18th-century relations between England and the kingdoms of Scotland and Hanover,"—yes, an actual quote—it's pretty clear that the law has "run out").

However, in such cases Court can't just throw up its hands and say, "Not our job!" We're a Common Law country. "It is emphatically the province and duty of the judicial department to say what the law is." So they just make it up. Most of the time, I'm ok with that; I'm past any problems with the idea that "judges make the law."

The Least Dangerous Chamber?

In the comments of my previous post, Big Jim said that perhaps the composition of the Senate serves an important goal of federalism. If legislation that is not universally popular is hard to push through the Senate, there will be less federal regulation imposed on people who don't want it. Congress, in a federal system, is not where the bulk of legislation is supposed to come from, so impediments to majority rule at the federal level are not a bad thing.

There is another, broader point contained in here, however. As a wise man once wrote:

The Most Dangerous Chamber

The most common criticism of the Supreme Court, and of the judiciary in general, is that it is countermajoritarian. In other words, we let unelected, life-tenured judges overturn decisions of the people's elected representatives. Now, much has been said elsewhere about the "countermajoritarian difficulty," and also why it's not really so much of a difficulty. Today, however, I want to focus on a different countermajoritarian problem: the United States Senate.

Now, the Senate is elected by the people, and Senators have to face re-election every six years, so nothing about the body is particular countermajoritarian, on its face. But, in many respects, the body is highly countermajoritarian. The current Democratic caucus of 60 senators represents about 64% of Americans, and yet even with a Democratic president it is enfeebled by senators representing the other 36%. Now, before people start yelling about Bill Frist and the "nuclear option," note that even at the current Republican Party's height of power in 2005 and 2006, the 55 Republican senators represented 50% of Americans (my best estimate, to two significant figures). The current Republican party's power derives from the Great Compromise that allowed small states to ratify the Constitution. Each Democratic senator represents 3.2 million people; each Republican senator represents 2.7 million.

So, what is the problem with this?

The Slave of the Passions

Because Dworkin stamped on my ideas in class today, I feel the need to explain my Humean view of motivation in some amount of detail.

I am not a motivational internalist. What this means is that I do not believe normative judgments are motivating. The judgment "I should do x" does not motivate me to actually do x. It's just a judgment; it exists in a vacuum. "Reasons" for action (as in "I should do x") are parasitic on desires.

Here's how it works: I have a Subjective Motivational Set (SMS) which consists of all the desires I have, {D1, D2,..., Dn}. These desires can be specific ("I want chocolate cake") or general ("I want to be a good person") or anything in between.

These desires form goals or ends for me. The goal of the above two desires are actually eating chocolate cake or being a good person. What reason does is tell us how to get there. I have a reason to go to a bakery only insofar as it gets me chocolate cake. I have a reason to give to charity only insofar as I desire to be a good person. The reasons are parasitic on the desires.

What's the Value of Democracy?

Ronald Dworkin posed an interesting hypothetical in class several weeks ago, and I think it's worth discussing. Imagine a country where there are no elections, but every two years a computer picks 1000 citizens at random, and those citizens become the national legislature for those two years.* Assume the system had adequate constitutional safeguards to prevent the legislature (who would not care about reelection) from becoming tyrannical. Assume further that all of the people chosen were capable of serving as legislators.

Such a system would, in all likelihood, have a legislature much more representative of the people and their views than any democratically elected legislature. Still, such a system would probably not be deserving of the name "democracy." The question I pose is: Should we care? Such a system would probably meet all the criteria for self-government, as I described it in my previous post. The governors would be under the control of the people (at least under the conditions I've stated), and the system, at least ex ante, treats all people as equals. So, is there anything worse about this system than a democratic one? If so, what is it?


*For a more ad absurdum version of this proposal, consider the Isaac Asimov story "Franchise," in which a supercomputer selects the most representative person in the country to be the elector for that year; based on the person's answers to a series of mundane questions, the computer figures out who the country "elects."

Self-Government as Non-subordination

I'm in the process of trying to develop a final paper topic for Dworkin's seminar, and I've been bouncing around an idea about self-government as non-subordination. Here's the idea; it's not fully formed yet, but if you have any comments, I'd be happy to hear them. In the presentation that János Kis gave on judicial review, Kis discussed two components of his definition of self-government. First was the idea requirement that the law treats all members as equals, including—but not only—as participants in the system. The second was that the community must be in a special relationship with its officials—namely, that it exercises some degree of control over them. What I am most interested in is the first criterion. What does it mean for a society to treat all its members as equals?

One can conceive of equality in a purely procedural way, as equal ability to participate in the legal and political system. This view of equality recommends a Ely-esque view of judicial review: The institution should be used to protect the ability "discrete and insular minorities" to participate equally in the political process.

However, what if we put some substantive flesh on these procedural bones?

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I apologize for not posting for the last week. Law Review editorial work comes before blogging, unfortunately. I'll have more to say next week.

Privileges and Equality: The Double-Edged Sword of the 14th

I've been thinking about an issue I tweeted about last month, the issue of whether the Supreme Court can (or will) incorporate the Second Amendment through the Privileges or Immunities Clause (POIC) (instead of the Due Process Clause (DPC)). Certainly, saying that owning guns is implicit in the concept of ordered liberty is a bit of a stretch. Second, at least one article notes that there is "some evidence that the amendment’s writers specifically wanted the clause to apply to allow freed slaves to have guns to defend themselves." Third, overturning—or at least limiting—The Slaughterhouse Cases would be totally awesome for ConLaw geeks like me.

However, there is one problem with the Privileges or Immunities Clause: It doesn't help everyone. While incorporating rights through the DPC protects "any person," incorporating through the POIC protects "citizens." Noncitizens are out of luck.

Or are they?