Redstate

I agree they both deserved a 'twack' for failing to cite a potential impact of their own Supreme Court in the matter. It seems like it would have made sense to do so if only from the standpoint of trying to draw a distinction between legislation moving through the Legislature and a constitutional matter submitted to the electorate for a decision.

The Judiciary and Legistature are equal branches of government and one ought not interfere in the 'process of decision making' by the other, only in the result. But both are subservient to the people so it would seem to me that the court and the legislature should stay out of that process until the people have have spoken.

I'm not sure that the judiciary is bound to be subservient to the people (which is why so many federal judgeships are appointees, rather than electees). Correspondingly, the powers owned by the judiciary are (or should be) more limited in scope than those of the legislature or the executive branch.

As I understand it, this frees the judiciary to concern itself with the higher value of justice, rather than concentrating on the question of what the people want this week. Certainly, the judiciary exists in service of the country and its citizens, but I'm not convinced that that should mean that the judiciary should make no decision against the popular will; rather it should, respecting the rule of law, encourage justice and, in so doing, serve the people by propagating justice and the rule of law.

Likewise, the legislature is not, and should not, be bound to follow the will of the people religiously. Were that so, we may as well replace the lot of them with Gallup and Co. or with public referenda (also a bad idea). All things considered, I generally like democratic rule; it's certainly a damn sight better than any alternative I've yet seen. At the same time, problems with democracy seem, to me, to stem from problems within the voting populace more often than from problems in the democratic system. As such, making the system more democratic really ought to be avoided, or at least considered very carefully. Likewise the suggestion that the judiciary ought be bound to greater accountability to the popular voice.

This is not to discount concerns over judicial activism and legislation from the bench, which bugs me considerably, nor to raise any concern over the decision mentioned above, which I find myself much in agreement. I'm just wary of invocations of the people's will. Anyway, IANAL, YMMV, et cetera, et cetera.

I am not saying that the legislature blindly follow the will of the people --- we have a representative government and we elect people to use their best judgment on our behalf, not to simply do what we (whoever 'we' is this week) tell them to do.

(This for example is one of many problems I have with Kerry. With respect to abortion he said that while he is opposed he does not think it is right for him to impose his view on others by legislation. But that's is exactly what he is elected to do; use his judgment on our behalf. If he is deeply philosophically opposed to abortion then he should vote accordingly. If not then he should vote the other way. But he should not try to have it both ways.)

But ultimately all branches of government are subservient to the people one way or the other. The legislature at election time, the courts at appointment and even legislatively. Granted the federal judiciary is perhaps the most aloof given the appointment for life, but even they can be controlled to a degree. The federal constitution give the Congress the power to prescribe the manner in which the judiciary can act with respect to particular legislation. The Congress can even forbid the Supreme Court from exercising appelate jurisdiction:

Article III Section 2

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Last week the House passed a bill that would prevent the Court from hearing cases involving the phrase 'under God' in the Pledge. There is even legislation pending that would prevent the Court from hearing cases involving 'full faith and credit' recognition of 'gay marriage'. If it passes both houses then the Court is enjoined from acting in that matter.

The founders created a truly brilliant government structure.

Have you seen Ramesh Ponnuru's article ("One Branch Among Three") regarding Article III, Section 2? It's been a while since I read it (months, actually), but I seem to recall that it actually sets up minor courts for the hearing of the explicitly exempted issues (as in the case of the pledge, which I did hear about by way of NR).

Nonetheless, I'm as leery of justice by legislative fiat as of legislation by judicial fiat. As you have said, it's good that the two branches not usurp responsibilities from each other. I'm heartened by the decision to remove some of the more contentious social issues from the federal court's purview, but I cannot but feel uncomfortable about issues of precedence.

... seen the article but I will try to read it tonight.

As to the justice by legislative fiat vs legislation by judisal fiat question, I am leary of any kind of fiat (but especially the 1982 Fiat 124 :-). However, if I have a choice I'll take the former.

With the former the legislature stands for election periodically so if we don't like what they did, or we change our collective minds, then we have a chance to deal with it at the ballot box. Unfortunately the latter just keeps on repeating itself in the form of legal precendent; there does not seem to be a way to 'make it go away'.

 .. by judicial fiat question, I am leery ... form of legal precedent; ...

{I REALLY need to remember to run the spell checker before hitting the GO button. I am an abominable typist --- but at least you know one person NOT responsible for the Rather memos.}

seems to be that Congress utilizes a clause of Section 1 of Article III to effect the restriction of appellate jurisdiction mentioned in Section 2. It has, as I said, been a while, so I may actually have it mixed up with a different article discussing Section 1.

As regards the the issue of fiats and the electoral voice, I do agree (and have to admit that "legislative fiat" is an especially poor choice of words on my part). I have grown into a profound cynic, though, and I often have great difficulty seeing the good without that it be overshadowed by the bad.

P. S. I had to look leery up to be sure I had it right. I consider it a good post if I avoid misspelling any words: it's excellent if I also avoid leaving any words out, since I sometimes find myself thinking too for my fingers to keep up.

I case you are not aware of it, there is a spell checker for IE. Cleverly enough its called "ieSpell" (you can Google it). It installs easily and works very well.

There are similar projects for Mozilla and Firebird (which I use at home and at work, respectively), but I can't be bothered. I rarely remember to use them when they are already available.