Strengthening Constitutional Self-Government

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Sixth Sense

How Appealing reports that the Sixth Circuit Court of Appeals has become the second circuit to find that the Supreme Court’s decision in Blakely v. Washington invalidates the Federal Sentencing Guidelines, making them "simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for." The panel opinion can be read here.

The blog also reports: "Divided three-judge Sixth Circuit panel rules in favor of ACLU, and against ACLJ, in appeal over whether Ohio state court trial judge may display Ten Commandments poster in his courtroom." That opinion is here.

Discussions - 6 Comments

Aren’t sculptures of Moses and Ten Commandments in the Supreme Court building and in the Capitol, where Thomas Jefferson himself attending Protestant services on Sundays. Doesn’t the Court begin its sessions with, "Oyez, oyez, God save this honorable Court."? Maybe I’m way off base here, but does the mere introduction of religion into civic life create an official denominational Church? Maybe we should refer to George Washington’s "Farewell Address" in which he said, let us with caution entertain the supposition that republican government could survive without virtue and morality based upon religion. That religion was not an official church, it was not a coercive religion, but it was a religion that promoted a moral, virtuous citizenry and was indeed a part of public life.

As a result of the sentencing guidelines, as well as the culture that created those guidelines, the US is now incarcerating people at a higher rate than any other country in the world. Setting aside the obvious humanitarian issues, the monetary costs have become staggering. Should we continue on this road? Should we privatize the prison industry?

I am no particular fan of the sentencing guidelines, but many of the issues that Mr. Gordon cites are more directly related to stiff penalties otherwise prescribed by law in the war on drugs. I am also disturbed that yet again, Mr. Gordon’s approach to the law seems to be (assuming that he agrees with the 6th Circuit) that the ends justify the means. If the result is good policy, then the underlying legal decision must be good law. This was certainly his argument in the Rasul case. But those who view law simply as policy without understanding that the purpose of the law is to set set neutral ex ante standards do violence to both the policy and the law.

Mr. Alt: The word neutral is a very open ended word. What do you mean by this? Also, can you explain a little more what you think the "purpose of the law" should be?
It seems as if many judges(even some who are not considered "liberal" or "activist") would also disturb you?

You ask the wrong question: asking what the purpose of the law is imputes the role of the legislature, or lawmaker as well. What we are discussing is the role of the judge, and the role of the judge is to interpret the law as it is written, not as he would have written it in his or her infinite wisdom. That is not their job--that is the job of the elected, legislative branch. And yes, because of this, I have strong disagreements with those on the right and the left who abuse the power of their offices by ignoring the law in favor of their own policy preferences. For example, I disagree with 7th Circuit Reagan appointee Judge Richard Posner, who has written that he thinks Judges should simply ignore clear legislative language if it doesn’t match their own policy objectives. I disagree with the Supreme Court’s decision in BMW v. Gore, in which a cross-section of justices found that the U.S. Constitution limits punitive damage awards. Despite my distaste for the abuses of trial lawyers, the Due Process clause puts no such limitation on the states in my view. This should give you some view of neutral: Posner often reaches policy results that I agree with, by I disagree with his jurisprudence and often with those decisions. Similarly, I would likely vote to cap punitive damage awards were I in a legislature, but I think it is wrong for judges to impose a Constitutional restriction which quite simply does not exist.

Thank you for sharing your views.

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