Tuesday, July 05, 2005

Williams v. Wal-mart

A poster by the name of "a former european," who goes all the way back to my days at The Other Blog, has often argued with me about the power of judges in our current political climate. A hypothetical he often throws out is what could we do if the Surpeme Court decided that slavery was OK, despite the 13th Amendment. I never really saw the hypothetical as useful.

Well, I must now stand corrected. It appears that a former european was right.

In Williams v. Wal-mart, the 6-3 Surpeme Court upheld Wal-mart's slavery employment contract.
Rehnquist, Scalia, and Thomas all dissented. Writing what is certainly the
shortest dissenting opinion in the history of the Court, Scalia wrote only “I
can’t believe they let these idiots in the room with me.


At 12:35 PM, Blogger spd rdr said...

It's like shooting fish in a barrel.

At 4:50 PM, Blogger a former european said...

See! I knew it was only a matter of time!

Seriously, though, KJ, I know my example of slavery might seem extreme now, but do you think anyone 20 years ago would have seriously considered "gay marriage" to be a hallowed constitutional right? Unlimited seizure of private property by the govt for any purpose whatsoever?

My main point is that once you provide any group, in this case 9 justices, essentially unlimited power, tyranny and despotism is inevitable.

It might start slowly, as that group tests the boundaries and limits of its power, but quickly accelerates when it discovers that there are no such limits. Pretty soon you're back to the days of rule by divine right as absolute monarchs or, in this case, oligarchs.

The last few decades have seen SCOTUS, and lesser courts, particularly the 9th Circuit, get further and further out of control. In these modern times, who will stand up to SCOTUS? No one appears to have the cojones to pull an Andrew Jackson anymore.

If SCOTUS goes all Strom Thurmond/Robert Byrd and decides "them niggrahs has got all uppitty", who would stop the re-imposition of slavey, or maybe just a return to Jim Crow?

Once power has been ceded to an unchallengeable ruler, you are living at that ruler's sufferance, as is your freedom. Just because that ruler has not yet decided to seize your life, liberty, or property does not change this state of affairs. We are well down the road to serfdom (to steal a nice phrase from Hayek).

At 5:01 PM, Blogger KJ said...


You still can't impose slavery without legislative authority. Kelo was bad, but at least all it did was grant power to the state that the constitution, I believe, had denied it. When the Court is MOST dangerous is when it takes an issue away from the people without proper justification. It can be right or wrong in either case (giving too much, or too little, power to the legislature). But giving too much power always gives us a way out -- we can win the political battle. And Kelo is an example of that. There is a lot of legislation at the local and state (and even Federal level) about this sise.

(ASIDE: afe, you do recognize the irony here. When we discussed Establishment clause cases in the past, even where we agreed, your argument started with the proposition that the Establishment clause only applied to Congress and not the states. Well, the 5th Amendment does too. It is the same "incorporation" under the 14th Amendment that even gave rise to a U. S. Constitutional issue in Kelo. Without the incorporation, the U.S. Constitution had no applicability to Kelo, except for purely "process" reasons.

At 10:48 PM, Blogger a former european said...

KJ: I don't disagree with you on the Establishment Clause here. My point is on the abuse of power by the judiciary. You can say all you want that its a legislative issue, but the courts have not hesitated to usurp legislative functions; hence the term "legislating from the bench".

The courts have even required the legislature to perform certain acts and pass certain laws. In Massachusetts, the legislature was ordered to enact laws permitting gay marriage. Driving into work today, I caught a news story that some judge found education funding "inadequate" and ordered the legislature (I didn't catch which state) to raise taxes so education could be "properly" funded.

Aren't these examples of the judiciary usurping legislative functions? If the judges are willing to act as a de facto legislature, or simply tell those powerless puppets what to do, then why should I be comforted by your argument that these judicial decisions simply move the debate into the legislative realm?

Abuses of power are still abuses of power, and deny both you and I our freedoms and protections under the Law sooner or later.

At 11:03 PM, Blogger KJ said...

Yes, both example are likely (Mass definitely, I can't say on the state issue b/c who knows what the state constitution says) abuse.

But my point was only, some abuses are better than others. I would rather the Judge not strike bad laws and give me the chance to win over the legislature than the judge order/strike laws not constitutionally mandated, thus taking the issue away from the legislature. It isn't that one is and one is not a "wrong." It is a question of degree. And the point on slavery as you define it is the lesser evil (in the sense that the Court AND the legislature, not just the Court, would have to allow it for it to return).


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