April 21, 2008
Courts Should Insist That
The Political Branches Do Their Jobs Carefully And Thoroughly, Instead of Shoddily

Dean Lawrence R. Velvel

As the last posting said would be the case, this essay is about an idea which, as far as I know, is quite novel.  It is an idea which deals with when courts should rule on, and/or how they should decide, constitutional issues and some other issues.  It is an idea whose ramifications, from the legalistic point of view, are virtually endless; I shall deal with none of them because they could occupy scores if not hundreds of pages and because, truth be told, it has been decades since I thought well of legalistics -- if I ever did.  (I regard legalistics as merely conservatives’ way of stopping progress.)  The legalistics can be plumbed by others if people choose to think well of the idea and to run with it.

It has been three decades since I stopped being a constitutional lawyer, and more than that since I gave up any hope of making a mark in that field (though I occasionally still read cases for other reasons and occasionally post about them).  Yet even a long retired constitutional lawyer knows that there are various doctrines by which courts avoid ruling on constitutional issues.  Courts will say, for example, that a case presents a “political question,” or that a plaintiff doesn’t have “standing” to bring a case, or that a case isn’t “ripe” for adjudication.  The supposed rules governing these doctrines -- or the so-called “elements” of the doctrines -- are manipulated or sometimes even changed outright for short term reasons, often make little or no practical sense, and cause forests to be felled as law professors and other make their bones explaining, supporting or opposing them.  Robert Bork has been a big exponent of them and, if I remember rightly, so has John Roberts.  But when all is said and done, cases on doctrines such as these usually are nothing but an exercise in manipulation of doctrines and ideas in order to avoid ruling on issues. 

Wouldn’t it be better if, instead of indulging phony baloney, courts were to focus on an overriding reality when deciding whether to rule on an issue?  Wouldn’t it be better if they were to focus on whether the appropriate governmental body (or bodies) had given extensive consideration to the problem at hand when acting on it?  The appropriate body would in some cases be Congress, in some cases state legislatures, in some cases administrative bodies or governors or the federal executive.  When the appropriate body has truly considered a problem -- at least where that body is Congress or a federal agency, and sometimes when the other bodies are involved -- there will usually be pro and con bodies of knowledge, fact, history, anecdote, and even statistical compilations that have been worked up and will be available to aid judicial decision making.  It is often the absence of the pertinent information that presently causes courts to manipulate abstract, often insensible doctrines when they are deciding whether to rule on a problem.  The situation would be far more satisfactory if courts were instead to focus on whether necessary information was created and considered in the legislative or administrative process and sufficiently supports the governmental action.

The idea that the appropriate decision making bodies should have seriously considered a problem, should have amassed and considered facts, history, statistics, etc., has another application too.  It is now notorious that Congress enacts laws that most or even all legislators have not read, that Congress people and their staffs did not write (the laws were written by the executive or by private lobbyists), that have sometimes been procedurally manipulated in Congress so that legislators will not even have a chance to read them, let alone absorb and consider what they say.  The Patriot Act exemplified this -- Congressmen had no chance to read it or to know what was in it.  But there unfortunately are many examples, sometimes entire laws and sometimes specific provisions of a law, as “outstandingly” exemplified by the Patriot Act, of legislation that injures civil liberties or property but receives little or no Congressional consideration and was not supported by facts or history.  Rather than exercising their penchant for upholding a law by saying “Congress [supposedly] decided” this or that, or the (in reality undeterminable) “intent of Congress” supposedly was this or that, it would be better for courts to say they will strike down laws harming individuals or property that are supported by little or no detailed consideration in Congress, few or no facts there, little or no history, few or no statistics, and so forth.

Notably, the ramifications of the idea presented here are revolutionary in today’s climate but, ironically, would take us back to something the framers intended at the time of the Revolution.  The framers were interested in having authorities exercise what they called “disinterested virtue.”  “Disinterested virtue” required extensive consideration of the public good, of what would conduce to, and what would be opposed to, the public good.  Our horridly partisan and generally stupid current politics often have very little to do with the public good.  Extensive consideration by Congress, legislatures, agencies etc. of the facts, histories, statistics etc. relevant to a problem -- instead of these bodies not writing, not reading or not even knowing what is in a bill -- would almost surely conduce to better, wiser, more informed decision making, conduce to a better effort to achieve the public good if not also to an increase in exercise of disinterested virtue.  But courts do not insist that before they will hear and decide for the government on an issue concerning a law or regulation, the legislature or agency must have given careful consideration to it, must have considered much or all relevant information.  To the contrary, rather than insist that Congress have considered pertinent information, courts dodgingly uphold Congress by claiming it might have thought this or that, or could have thought this or that, when in fact the courts have no idea what Congress thought, if anything, because Congress lacked information and in reality didn’t even consider the problem.  For courts to insist that Congress or state legislatures or agencies or executives must have considered extensive relevant information before taking action would be for courts to tell them how to go about their business.  This would be revolutionary.

Yet, it would be a deeply conservative -- and desirable -- revolution.  When one reads the history of the founders -- the history of the Continental Congress that enacted the Declaration of Independence, or of the Constitutional Convention in the late 1780s, or of the ratification debates -- or when one reads The Federalist Papers, one can hardly avoid thinking that those people considered problems from every side before acting.  They were, as said, believers in disinterested virtue as a means of reaching the public good.  One can hardly imagine them approving what is going on today and what h as been going on now for just over 200 years.  (There are historians of the period, indeed, who think that the framers might have worried a lot less about what they were doing had they known what a miserable state their experiment would come to in our own time.)  Today’s conservative frauds in the Executive, and their lackeys in Congress and the press, like to hearken back to the framers, yet employ knee jerk methodologies that are the very opposite of the framers’ careful methodologies.  Liberals do the same.  Between the two sides, our politics are a disaster.  It surely couldn’t get worse -- it could only get better, maybe a lot better, maybe even salvationarily better -- if court were to insist that the other branches do their jobs with the care, consideration, and maximum possible information and debate with which the founders did theirs.

This posting represents the personal views of Lawrence R. Velvel.  If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu.  Your response may be posted on the blog if you have no objection; please tell me if you do object.


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