Tyranny of the Majority

I think the entire point of the judiciary is at some deep level of abstraction, that it be anti-democratic. I think there is ample historical evidence that the Framers intended the judiciary to act as a check on majoritarian excesses. This explains why I am unsympathetic to all the keening and wailing that goes on with respect to 'judicial activism,' and 'anti-democratic judges.'

Judges, if they are doing their jobs, IMO, are the watchguards, the curbs against tyranny of the majority.

The Curmudgeonly Clerk disagrees. CC notes,

Where our unenumerated rights are concerned—whatever they might be—my intuition is that the legislative process is a better guarantor of their status and security than judicial decisionmaking, if for no other reason than that we, the people, may more easily revisit mere legislative enactments than the constitutional rulings of the federal courts.

I'm not sure what CC means. Constitutional rulings of federal courts may be dealt with with at least as much ease as legislative enactments. On the state level, a change in the offending statute often results in high courts' decisions being abrogated by statute. Constitutional amendments are always available to enact any preference the majority wishes to enact, regardless of what any judge, federal or state has to say about anything.

I'm not sure why it is any easier to deal with offending legislative enactments than with offending judicial decisions. Moreover, there's another, more subtle point that I think CC is missing.

Namely, let's assume that law X is passed, supported by a majority of state Y's voters (yah yah, representatives, work with me here). Now, let's say that X unconstitutionally discriminates against a minority group Z. CC thinks that the legislative process is a better guarantor of Z's rights than the judiciary. But how can that be? If the majority Y likes the statute, and wishes to keep it around, what can Z do? A constitutional amendment is no help, since they often require supermajorities, and even if they don't , they at least require A majority.

Legislative process only helps group Z if it is in the majority, or of it can obtain a majority of the votes. But if they can't, and if we assume that X is truly and actually unconstitutionally discriminatory, then they're stuck up TP's Creek.

Thus, to rely on majoritarian processes to correct majoritarian abuses is fallacy, IMO. Under these circumstances, the only remedy has is to look to the one branch of government, that since its inception (or at least since Marbury), was intended to curb the worse majoritarian abuses.

But courts have hardly proven themselves to be infallible in securing even our enumerated rights, and the common law adjudicative process has a tendency to insulate the courts' decisions from reconsideration in a fashion that is not characteristic of legislative decisions.

I'm far more comfortable relying on courts than legislatures, especially given that the entire and proper role of the former is to act as the last line of defense against majoritarian abuses. Color me paranoid (and Jewish). And as far as insulation, I respectfully call out 'assumption' on CC. At the very least, that conclusion is arguable, if not implausible.

Others might object to such a judicial abdication on the ground that it amounts to unfettered majoritarianism, which endangers the rights of minorities. Given the existing constitutional mechanisms for checking the will of the majority, such a concern seems misplaced.

What mechanisms? Legislative mechanisms are no help in this situation, as I tried to explain above. Constitutional amendments? If a judicial decision truly goes against the will of the majority, the majority is in a position to correct it by amendment. In contrast, a minority group has no chance of correcting an offending statute by amendment b/c it is by definition, a political minority, which, if it could prevent offending laws from taking effect, would presumably have already done so through normal legislative means.

Likewise, it is ultimately difficult to conceive of a more feasible check on tyranny than democratic governance.

I think both in theory and in history, CC is mistaken on this point. Now, no one get me wrong--I like democracy, and think it is superior to any other system of governance, but it certainly has its weaknesses, and pure, unadulterated democracy is at least as dangerous as pure unadulterated any other system of governance.

Democracy is rule by the majority, plain and simple. If it is the majority that is doing the tyrannizing, then I cannot see how it follows that majority rule will check that tyranny. It is the cause of that tyranny, the locus of its power. It is the fuel, not the retardant.

UPDATE: Tim Sandefur, in a scary good post, agrees with me. Go read his post in full, as it is cited in my post below and he is discussing the ninth, but some money excerpts:

Yes, courts have certainly overreached themselves, and continue to do so today. But they cannot carry their plans into execution without the cooperation of the legislative and executive branches, and experience has shown very clearly that we have been oppressed by the legislature and the executive far, far more often than by the judiciary.

I’ve asked before and I’ll ask again: what, precisely, do these people think is the job of the judiciary? I say the Constitution “was intended to secure to weak and unpopular minorities and individuals equal rights with the majority, who, from the nature of our government, exercise the legislative power. Any other construction of the constitution would set up the majority in the government as a many-headed tyrant, with capacity and power to oppress the minority at pleasure, by odious laws binding on the latter.” Wally’s Heirs v. Kennedy, 10 Tenn. 554, 557 (1831).

History reveals that the worst abuses of Americans have proceeded from a combination of the legislature and the executive, and that “judicial restraint” has far more often been a license for these oppressors than a protection for our freedom. Of course we don’t want unelected judges running everything. But we do not want elected legislators running everything, either. The reason we have a constitution is to stop the legislature from governing certain things.

Go read the rest. Go on with your bad self, Mr. Sandefur.

Comments

[Sebastian Holsclaw]

Judicial Power is only supposed to be as undemocratic as the Constitution. Which is to say that the Constitution requires super-majorities to change, and judges are supposed to restrain the exercise of power of legislatures by enforcing the Constitution. The problem of judicial activism is when judges decide to restrain the power of legislatures by enforcing limits that aren't in the Constitution. A related problem is when judges 'legislate from the bench'. This occurs when judges make policy decisions based on what they think would be the best outcome. The only province of a judge with respect to legislatures is that the judge confirm that the policy chosen by the legislature is allowed by the Constitution. All other policy choices are left to the legislatures.

[Owen Courrèges]

CLAP CLAP CLAP!

Exactly, Sebastian.

[Daniel]

I'm not sure I disagree, insofar I'm not sure what you said conflicts with my arguments.

I'm not advocating a judiciary run wild, and, of course, judges can and do overreach, as Sandefur notes.

My point is a bit more broad-based: both judges and legislatures can run wild, and given what I see as the history and point of the judiciary, I'm much more concerned about the latter than the former.

[Ed Brayton]

Daniel-

I agree completely, as I just said in a post on my blog. I've been writing on the 9th amendment and judicial tyrrany for the past couple weeks. I'm an amateur, not a lawyer, but I'm in agreement with you on this one. And with others like Tim Sandefur and Randy Barnett. It's kind of fun watching the whole blogosphere debate this!

[Daniel]

Thanks for stopping by, Ed, and for the compliments on your blog.

[todd harlow]

Sorry to be catching the tail end of what looks to have been a long-running and spirited debate. I've heard most all of it all before, particularly the part about policy choices being the exclusive purview of the legislature. I don't disagree that legislators make policy choices, but when put in context, much of what is really being argued about has nothing to do with policy.

That is, if/when a judge recognizes (for example) a woman's right to choose, or a gay man's right to marry, (s)he is not making a policy choice. Rather, that judge is recognizing an individual right guaranteed by the constitution. (S)he may be looking to the 5th, 9th, the 14th, 14th P&I clause, EP/DP clauses, commerce clause, the "penumbras" of those sources (as originally articulated by the SC), or some other source, but the judge is finding authority somewhere besides his/her own brain.

The majority of the citizens of a state (or of the U.S.) don't get to decide what individual rights any of us have. Doesn't work that way; never has.

On the federal side, assuming Congress passed an Anti-Abortion Act or a Defense of Marriage Act, such enactments would be hopelessly unconstitutional, IMO, as they should never survive strict scrutiny. Maybe a court would end up upholding such enactments, but if it did so the court, again, would not be making a policy choice. The court would (probably) say laws that discriminate on the basis of sexual orientation are constitutional (not subject to heightened scrutiny), or that a state has a compelling interest in the life inside its citizen that justifies an abortion ban. These are decidedly not policy pronouncements.

Crucial distinctions, IMO. The vagaries of policy choices ought not be confused with disagreements over constitutional interpretation.

[Owen Courrèges]

Daniel,

Neither you nor Sandefur set any limits on what judges can decide. They can recognize virtually anything they want as a 'right,' and close it off to the legislature. Harlow says these aren't policy decisions, but given that your philosophy of interpretation allows judges to make up any rights they want, it strikes me as difficult to make that assertion with a straight face.

As you suggested before, just because you say it doesn't make it so.

[Daniel]

Yes, I advocate judges doing whatever they want, making up anything they wish.

STRAW MAN.

Stick to the broad based point I'm making here: other things being equal, I'm more comfortable with judges overreaching than legislatures. Your point does nothing to controvert this.

P.S. Todd is making a stronger claim than I am here. My guess is your response is directed more at him than me.

[Sebastian Holsclaw]

The problem is not that you advocate judicial overreach. The problem is your interpretation of judicial power does precisely nothing to restrain judicial overreach. You sum up your position as: "other things being equal, I'm more comfortable with judges overreaching than legislatures." But your position on the judiciary does not make things equal. It gives judges limitless power to reshape laws.

I'm also not really sure you are even talking about legislative overreach. Are we talking about legislatures doing things you don't prefer, or things that they are Constitutionally not permitted to do?

Are you less worried about judicial overreach because they are doing things you like, or because you think that the power of judicial overreach isn't very strong? It isn't clear to me.

[TP]

Sebastian,

I disagree. In the first place, my post does not even attempt to explain how judges may be prevented from overreaching, in any way, shape, or form. While that is of course a legitimate concern, my point here was that IF I have a choice between a system of governance that permits legislative overreach and one that permits judicial overreach, I'm going to choose the latter over the former. I'm far less frightened of the latter. And again, I'm not in favor of judges doing whatever they want.

My point is simply that given a choice between having judges overreach, and having legislatures overreach, it's plain to me which is preferable. At that point, it's fair to inquire as to how exactly I would conceive that judges can be restrained, but the details of that were not the point of this post.

And, as I mentioned, contrary to your assessment, judges don't have limitless power to reshape laws. Majorities and supermajorities can always override or even abrogate judicial opinions in their entirety.

When I refer to tyranny of the majority, I'm generally referring to enactments that run afoul of the Constitution, though of course, the danger of majoritarian abuse is hardly contingent on a constitutional regime.

There are scores of judicial opinions I disagree with every day. I am not worried about judicial overreach as much as I am legislative overreach b/c the latter, by definition, cannot be corrected by majoritarian processes. The former can. This is not the only reason I'm less worried about judicial overreach, but it's the chief one I attempted to explain in my post.

[todd harlow]

Well, gentlemen, this horse has probably already been beaten to death, but by way of requiem for said horse allow me to offer the following: my "philosophy of interpretation" is also known as constitutional analysis. No judge can "make up" a right, at least that's not the way con law was taught to me. Spare the postmodern deconstruction of judicial decisionmaking, please. I am saying the following: the judiciary interprets the law based on precedent. This includes recognizing rights embedded in legal texts that may not have theretofore been recognized (see: right to privacy; I BEG someone to tell me there's no right to privacy, and ought not be, with a straight face). Exceptions are constitutional amendments, departures from existing law that are initiated by either Congress or the States, which (once adopted) are then enforced by courts. Legislatures make (up) policy, not judges.

Substantive due process may have been a judicial construct, but it was based on an interpretation of the text of the constitution. Granted, nowhere is it written that a corporation is a person, but for SDP purposes, does anyone seriously disagree with the utility of that legal fiction? Would any of those same (not to stereotype, but generally) conservative textualists really care to accept the ramifications of an America that does not afford corporations the right to due process? Anyone?

Judicial Misconduct and Judicial Activism on Steroids

I found some interesting links which will conclusively prove that the present system of judicial discipline is a joke. These links describe a well-known problem that needs to be addressed. There is no "judicial discipline" with respect to the federal judiciary and that is a terrible mistake. "Absolute power corrupts." Every other branch of government is subject to some type of discipline except federal judges.

Chief Justice William H. Rehnquist, who recently appointed a six member commission to study judicial discipline, knows full well that complaints of judicial misconduct are routinely dismissed and NEVER acted on, no matter how bad the alleged and proven misconduct is. Moreover, complaints [section 372(c)] are kept in total secret. Additionally, complaints of judicial misconduct lodged through the appellate process are ignored as well. Judges, or law clerks, give themselves permission not to publish cases, consequently acts of misconduct never reach the light of day. There is no effective way to discipline a rogue federal judge and everybody in the legal profession is keenly aware of this fact. If you want to see how bad the current system is, then read the links provided below. These links will demonstrate every thing that is wrong with the current system. Congressman Sensebrenner and his committee should look into this matter.

For really outrageous behavior, read the links below and the documents referenced by the links. Download the documents and save them.

These links generally discuss the misconduct of Judge Donald L. Graham
http://donaldlgraham.blogspot.com
http://secretlaw.com
http://secretlaw.com/NewComplaint/HelpLetters/ContemptAbuse.html

These links discuss the efforts of the US Court of Appeal, Eleventh Circuit to conceal the misconduct.


http://mmason.freeshell.org/trickery/trickery.htm
http://mmason.freeshell.org/refusetodiscuss.html
http://mmason.freeshell.org/inherent/inherent.html

Judge Graham Lies and the Eleventh Circuit lies for him!!

* Lied and intentionally misrepresenting the law. Donald L. Graham did this by telling Mason one version of the law and another version of the law to a different Plaintiff. Graham stated in Mason's lawsuit that he could not state a claim under 42 U.S.C. § 1981 against a state actor while at the very same time he allowed a Plaintiff to state a claim under 42 U.S.C. § 1981 against the very same state actor. In Mason's lawsuit, Case No. 99-14027-CIV-Graham, Graham's Court stated:

"Counts Eight, Nineteen, Twenty-One, Twenty-Three and Twenty-Five deal with §1981 claims. This Court believes that those claims should likewise be dismissed pursuant to the Eleventh Circuit's opinion in Butts v. County of Volusia, 222 F.3d 891(11th Cir. 2000). In Butts, the Eleventh Circuit held that §1983 constituted the exclusive remedy against state actors for violation of rights contained in §1981. The Plaintiff has a valid §1983 count pending concerning his termination of employment. He has two Title VII claims as well as a disparate treatment claim pending. The Plaintiffs response does not give sufficient reason why he is entitled to plead a §1981 claim in light of the Buffs decision. Therefore, this Court is going to recommend to the District Court that Counts Eight, Nineteen, Twenty-One, Twenty-Three and Twenty-Five be dismissed with prejudice."

See http://secretlaw.com/NewComplaint/HelpLetters/DE-435/de435.pdf

At the very same time, Graham was saying that Mason could not state a claim against a state actor under §1981, he was allowing the Plaintiff to state a claim under §1981 against the very same state actor, Highlands County Board of County Commissioners, in Case No. 00-14094-CIV-Graham, Fa Nina St. Germain v. Highlands County Board of County Commissioners. See http://secretlaw.com/NewComplaint/HelpLetters/00-14094/de58.pdf . Fa Nina St. Germain's §1981 was disposed of on the facts, not the law and not Butts v. County of Volusia, 222 F.3d 891(11th Cir. 2000), in Case No. 00-14094-CIV-Graham. Clearly, Judge Graham either lied to Mason or Fa Nina St. Germain as he could not have told the truth to the both of them. See Page 3, Report and Recommendation, http://secretlaw.com/NewComplaint/HelpLetters/DE-435/de435.pdf ,(DE #435). Graham signed this Report and Recommendation. See (DE #466), http://secretlaw.com/NewComplaint/HelpLetters/DE-466/de466.pdf .
See http://secretlaw.com and http://geocities.com/mcneilmason.

On May 2004, Judges Carnes and Hull , Case No. 04-11894, were willing to lie or intentionally misstate the facts in order to cover for Judge Graham. Proof?

Mason merely asserts that Judge Graham was not impartial because … (2) would not let Mason file a § 1981 claim, but did let another plaintiff with similar claims do so... Moreover, a review of Mason’s complaint and the other plaintiff’s complaint reveal that their claims are not similar. Mason’s complaint alleges that county entities and employees violated his First Amendment rights, which is actually a 42 U.S.C. § 1983 claim. The plaintiff to which Mason compares himself, however, brought racial and national origin discrimination and retaliation claims under 42 U.S.C. § 2000e (Title VII) and § 1981. Both Title VII and § 1981 can be used to bring race discrimination claims.

See pgs. 2-3, Opinion, Eleventh Circuit Case No. No. 04-11894-B, URL: http://geocities.com/mcneilmason/secret/04-11894/04-11894.pdf. Both Judge Graham and the Eleventh Circuit know that this assertion is false because Mason's complaint specifically alleges racial discrimination and retaliation claims under 42 U.S.C. § 2000e (Title VII) and § 1981. See (DE #321, pps. 1, 2, 11; 63-64, 65, ¶¶1, 2, 3, 85, 459-462, 465-466, 473-474), URL: http://geocities.com/mcneilmason/secret/99-14027/ConsolidatedAmendedComplaint.doc. It is hard to imagine that judges would outright lie when they know the record clearly contradicts their statements. Aren't Judges required under the law to tell the truth? What is the punishment for judges that intentionally lie and misrepresent the truth?

*Usurped legal authority in violation of the First and Tenth Amendment. Judge Graham issued orders stating that Mason must request the permission of private for profit attorneys in order to speak to the government or request Public Records under Florida law. Judge Donald L. Graham and his magistrate issued the following orders to an unrepresented Plaintiff in a civil lawsuit. The Defendants being referred to is the Highlands County Board of County Commissioners and other governmental agencies. You can't find an order like this nowhere else in the written United States History.

Plaintiff shall be prohibited from contacting any of the [Government] Defendants, including their supervisory employees and/or the individual [Government] Defendants, regarding any matter related to this case.
Plaintiff shall correspond only with Defendants' [Government] counsel.

See http://secretlaw.com//NewComplaint/HelpLetters/DE201Orders/de201.pdf . Order June 19, 2000 (DE #201).

Plaintiff shall correspond only with Defendants' [Government] counsel including any requests for public records.

See http://secretlaw.com/NewComplaint/HelpLetters/DE201Orders/de246.pdf . Order dated July 25, 2000 (DE #246).

Plaintiff shall be prohibited from contacting any of the named [Government] Defendants in this case, including their supervisory employees and/or the individual Defendants, who are parties in other actions (Fellin, St . Germain, etc .) and are represented by counsel in those other actions regarding any matter related to those cases since Plaintiff is not an attorney or the attorney of record for the plaintiffs in those other cases,.

See Order dated July 25, 2000 (DE #246)http://secretlaw.com/NewComplaint/HelpLetters/DE201Orders/de246.pdf .Judge Graham actually dismissed a lawsuit because he said Mason talked to the government without the permission of a private for profit lawfirm. See Court Orders, (Doc. #201), (Doc. 246) . See http://secretlaw.com and http://geocities.com/mcneilmason.

* Allowing a motion for a preliminary injunction for to languish in court for 574 days and not make a ruling. The motion for preliminary in injunction was initially filed on November 24, 1999. Essentially, Graham gave himself permission not to rule on a motion for injunctive relief. Despite repeated requests, Graham refused to disclose why he wouldn't rule on the motion for a preliminary injunction. As a side matter, when Mason filed petition for mandamus (Case No. 01-11305) with the Eleventh Circuit, the Eleventh Circuit simply stated: "His mandamus petition, however, is frivolous because he has failed to establish that he is entitled to mandamus relief to compel the district court to rule on his motion for preliminary injunction." See http://Secretlaw.com/NewComplaint/HelpLetters/11305/11305.pdf

On May 2004, Judges Carnes and Hull , Case No. 04-11894, were willing to lie or intentionally misstate the facts in order to cover for Judge Graham. Proof?

Mason merely asserts that Judge Graham was not impartial because (1) he allowed many of Mason's motions to languish...As to the alleged languishing, a review of the district court docket sheet shows that the court ruled upon his motions in a timely manner .

See pgs. 2, 3 Case No. 04-11894 Opinion, http://geocities.com/mcneilmason/secret/04-11894/04-11894.pdf.
How is NEVER ruling on scores of motions and filings ruling "upon his motions in a timely manner"? This answer is false, dishonest, absurd, and insulting. Review the docket and see where Graham never ruled on the motions and filings listed above. See http://secretlaw.com/NewComplaint/HelpLetters/PacerReportsDocketEntries99-14027.html.

* Allowing scores of motions to languish in court for up to 8 months and not taking any action. For a complete listing, see web page languishing motions . See http://secretlaw.com/NewComplaintpLetters/languishingmotions.html

* Concealing Information and Falsely Completing a Civil Justice Reform Act Report. When Graham completed his Civil Justice Reform Act Report for March 31, 2001, he shows that he has no motions pending for more than 6 months. This information is false because the motion for a preliminary injunction had been pending for more 492 days or about 16.4 months. See Judge Graham's CJRA Report, http://secretlaw.com/NewComplaint/HelpLetters/CivilJusticeReformActReport.pdf.

* Abuse of the Criminal Contempt Procedure. Judge Graham abused the criminal contempt procedure to intimidate Mason and attempt to force Mason to drop an embarrassing lawsuit filed against him. See Grahams Lawsuit, http://secretlaw.com/NewComplaint/HelpLetters/GrahamLawsuit.html and Contempt Abuse, http://secretlaw.com/NewComplaint/HelpLetters/ContemptAbuse.html .

The Eleventh Circuit Court of Appeal are masters of artifice, treachery, trickery, and dishonesty. The Eleventh Circuit employed these techniques as a part of an overt conspiracy to conceal Judge Graham's misconduct and abuse of power. Even though all manner of appeals, mandamus, and Section 372(c) complaints have been filed, you will not even see these allegations in the Eleventh Circuit's secret and unpublished "opinions". See the Trickery web page for a listing of these techniques, http://mmason.freeshell.org/trickery/trickery.htm . The Eleventh Circuit's "creativity"in avoiding discussing these serious allegations is only exceeded by its dishonesty.

The Eleventh Circuit absolutely Refuses to Address the Veracity of the allegations of misconduct
The allegations of misconduct directed at Judge Donald L. Graham were raised on direct appeal, mandamus, Section 372(c) Complaints, however, the Eleventh Circuit simply ignored them. Sometimes the Eleventh Circuit just outright lied when it felt like it. See Briefs and Opinions below in Case Nos. 01-13664-A, 01-15754, 02-14646A, 04-11894, and 05-10623-I. See the Trickery web page, http://mmason.freeshell.org/trickery/trickery.htm , for details of the tricks the Eleventh Circuit uses to crush appeals.

05-10623-I, http:/secretlaw.com/NewComplaint/HelpLetters/05-10623/05-10623.pdf

petition http:/secretlaw.com/NewComplaint/HelpLetters/05-10623/PetitionMandamus.swf

01-15754-A, http:/secretlaw.com/NewComplaint/HelpLetters/15754/mandamus_denied.pdf

petition, http:/secretlaw.com/NewComplaint/HelpLetters/15754/WritOfMandamusAndWritOfProhibition.pdf

01-13664 , http:/secretlaw.com/NewComplaint/HelpLetters/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.doc

Initial Brief, http:/secretlaw.com/NewComplaint/HelpLetters/01-13664/CorrectedInitialBrief.swf

04-11894, http:/secretlaw.com/NewComplaint/HelpLetters/04-11894/04-11894.pdf

Mandamus Petition, http:/secretlaw.com/NewComplaint/HelpLetters/04-11894/mandamus.swf

02-14646A , http:/secretlaw.com/NewComplaint/HelpLetters/02-14646A/02-14646.pdf

Mandamus Petition , http:/secretlaw.com/NewComplaint/HelpLetters/02-14646A/mandamus.swf