Should the US Supreme Court Decide Cases Based on the Constitution or on Fairness?

[Ragoczy]

There was a recent poll in which the above question was asked and a large number of Americans answered "fairness".

This scares me. A lot. Especially since the vast majority of those who favored "fairness" identified themselves as belonging to the political party that'll likely control both Congress and the White House come January.

I truly don't understand this viewpoint.

"Fair" is a highly subjective thing, while the Constitution is far more stable. Yes, judges do occasionally allow their personal biases to override the law, but it's very rare -- far more frequent is the situation where the judge decides based on the law, even though his personal opinion differs. This consistency and stability is fundamental to a free society, yet all these people are willing to throw it away.

[Ozme52]

The problem with "fair" is the definition changes within a society... and sometimes... only because the Supreme Court rulings.

Was segregation fair? It sure used to be.

But it really wasn't because it created two levels of "service" and two levels of expectations.

The other problem with fair is that the majority rules... and sometimes the "majority" is just those with a majority of money. Those who can dole out the most bucks in support of their own perspective of fairness. Right now in California, it is clear that the majority of the money thinks denying people the right to be married is fair.

[Ragoczy]

The problem with "fair" is the definition changes within a society... and sometimes... only because the Supreme Court rulings.

Was segregation fair? It sure used to be.

But it really wasn't because it created two levels of "service" and two levels of expectations.

The other problem with fair is that the majority rules... and sometimes the "majority" is just those with a majority of money. Those who can dole out the most bucks in support of their own perspective of fairness. Right now in California, it is clear that the majority of the money thinks denying people the right to be married is fair.

It's more than money that can make the majority -- and I'm not sure which is worse: money or simple numbers. I do know that the tyranny of the majority is to be feared more than the tyranny of a dictator -- because with a dictator you only have to kill one guy, but killing most of your neighbors would make a horrible stink.

This is why pure Democracy is the most evil, repressive, repugnant form of government every devised.

[lucy]

This is why pure Democracy is the most evil, repressive, repugnant form of government every devised.

Do you know a better form of government? I'm honestly courious.
(Of course there is absolute monarchy, but that would only be better if i were the queen )

Tough question, as the Conservatives will have a much different view of the law then Liberals, will, it will boil down to interpretation of the lsawwhich will vary greatly depending on thier personal views

I don't think the answer should have anything to do with political viewpoints. There's a constitution, and Courts have to decide by that. Period. No matter who's in charge of the legislation. It's called separation of powers and everywhere this principle has been or is violated there's big troubles.

[mkemse]

Do you know a better form of government? I'm honestly courious.
(Of course there is absolute monarchy, but that would only be better if i were the queen )


I don't think the answer should have anything to do with political viewpoints. There's a constitution, and Courts have to decide by that. Period. No matter who's in charge of the legislation. It's called separation of powers and everywhere this principle has been or is violated there's big troubles.

True, I agree but Poitical Views Points in this country have always made the decison, look at the recent ruling n Gun Contro, all Conservatives said the Consistution specificly Guarantees everyone therigt to bear arms, the Liberals said, True but thatwas WAY before hand guns were know as they are now, the Conservatives voted Washington DC ban on hand guns UNCONSTITUTIONAL, the Liberals Vted the Opposite, thisis a GREAT example of Poltical Viewpoits deciding as case, is that good, no but this is howe their view pointso n the law interpret the 2nd Amendment, thier VIEW of the 2nd Ammendment
I am not taking a for or Con on thier viewpints but rthersimply pointing out a case where it may have been used

[Ragoczy]

True, I agree but Poitical Views Points in this country have always made the decison, look at the recent ruling n Gun Contro, all Conservatives said the Consistution specificly Guarantees everyone therigt to bear arms, the Liberals said, True but thatwas WAY before hand guns were know as they are now, the Conservatives voted Washington DC ban on hand guns UNCONSTITUTIONAL, the Liberals Vted the Opposite, thisis a GREAT example of Poltical Viewpoits deciding as case, is that good, no but this is howe their view pointso n the law interpret the 2nd Amendment, thier VIEW of the 2nd Ammendment
I am not taking a for or Con on thier viewpints but rthersimply pointing out a case where it may have been used

Backwards. It's a difference of Constitutional interpretation that has become politicized. The Constitutional language is clear -- and the Court's decision was the correct one. In changing times and situations, the correct path isn't to change the interpretation of the Constitution, but to change the Constitution itself -- if things have really gone so far afield from the founder's intent, with more powerful weapons, then a Constitutional Amendment is the procedure to clarify or update the language -- not simply reinterpreting it based on who's in political power at the time.

This isn't simply because I agree with the decision. There are any number of cases that I disagree with the outcome, but agree they're the right decision under the law and Constitution.

[Ragoczy]

Do you know a better form of government? I'm honestly courious.
(Of course there is absolute monarchy, but that would only be better if i were the queen )

Pure Democracy is defined as Majority Rules -- the masses vote directly on issues. The United States is not a Democracy, it's a Republic -- to get very detailed, it's a Constitutionally-limited, Representative Republic that has a democratic process. The founders of the US recognized this and many of their writing speak about the dangers of pure Democracy.

Pure Democracy is bad because the majority decide things without the rule of law over their decisions -- in other words, it's the tyranny of the majority. It's great ... as long as you're in the majority, of course. For those with minority views there are no protections.

So, yes, I know of a better form of government -- pretty much any. As I stated, in a dictatorship the people can overthrow the one in power -- but it's tough to overthrow the majority.

Pure Democracy is when seven wolves and sheep decide what's for lunch ... everyone gets a vote ... even the lunch.

[lucy]

Pure Democracy is defined as Majority Rules -- the masses vote directly on issues. The United States is not a Democracy, it's a Republic -- to get very detailed, it's a Constitutionally-limited, Representative Republic that has a democratic process. The founders of the US recognized this and many of their writing speak about the dangers of pure Democracy.

Pure Democracy is bad because the majority decide things without the rule of law over their decisions -- in other words, it's the tyranny of the majority. It's great ... as long as you're in the majority, of course. For those with minority views there are no protections.

So, yes, I know of a better form of government -- pretty much any. As I stated, in a dictatorship the people can overthrow the one in power -- but it's tough to overthrow the majority.

Pure Democracy is when seven wolves and sheep decide what's for lunch ... everyone gets a vote ... even the lunch.

Ok, i see. Thanks. But i like to disagree on two different levels. Let me explain: I live in Switzerland, our system is quite close to what you describe here. We get to vote directly on issues. From whether or not abortion should be legalized to whether or not there should be a new sewage treatment plant.
But there are many "safety catches", including the constitution, international laws (from the human rights bill to trade bills signed by Switzerland) but also a supreme court who can overthrow a decision voted on by a majority. That is quite possibly happening in the near future: We have to vote for (or against, in my case) a law banning minarets on mosques. Even it that law is voted for by a majority, it may very likely be overthrown by the supreme court because it is agains the constitutional right of freedom of religion. Why we have to vote if it's already pretty clear that a possible pro-vote wont stand in the end is an altogether different question, of course.
So far Switzerland did quite well, and to my knowledge no "extreme" issue was ever voted for. There were some ugly votes on topics regarding foreigners living here, but i am the first to admit that they are only ugly from my point of view.

As for your statement that a pure democracy is even better than a dictatorship: Ok, it might be easier to whack one guy (has there ever been a female dictator???) than a majority. However, a majority ruling over a minority is imho still better than one guy ruling over all the rest. Simply a matter of numbers. Besides, even if i dont really believe in common sense in large masses, there seems to exist such a thing since in most places where people have a vote (i. e. democracies) they do vote in a more or less responsible way. Of course there are exceptions to this, but usually those exceptions occured in exceptional times.
To make it short: While dictatorships exists and usually are pretty nasty for at least a great minority living under them, i have never heard of a pure democracy. Because if you give people the right to vote they tend to prove to be not as stupid as one would expect at the first moment.

[MMI]

Common law countries rely on the courts to declare what the law is, and the doctrine of precedent gives the law its certainty. A legal system which is uncertain is grossly unfair.

However, a legal system that is bound by precedent becomes rigid and unadaptable, and injustice can arise there too. Thus, we have equity - the gloss on common law - which redresses such injustices by issuing injunctions to prevent the unfair consequences of enforcing a legal right.

Statute (or the Constitution, where you have one) overrides common law and equity, because the legislature desire the law to say something in particular, and it cannot be left to the judges to say it (if they ever get round to trying a case that involves the point of law in question). So, I don't think fairness comes into it. Whether it's a fair law or an unfair one, if the lawmakers want it, they'll have it. And the judges must adhere to it.

For example, is it fair that bankers can pay themselves enormous bonuses while their company has to be rescued bu the government? Why not? If their contract entitles them to the bonuses, they should have them. But many people - even in USA - would like to see a law passed to prevent these fat cats getting any more cream.

Neither common law nor equity would allow that.

[Ragoczy]

So I tracked down the survey: http://www.rasmussenreports.com/publ...e_court_update

Most American voters (60%) agrees and says the Supreme Court should make decisions based on what is written in the constitution, while 30% say rulings should be guided on the judge’s sense of fairness and justice.
...
While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

[mkemse]

Tough question, as the Conservatives will have a much different view of the law then Liberals, will, it will boil down to interpretation of the lsawwhich will vary greatly depending on thier personal views

[Ragoczy]

Tough question, as the Conservatives will have a much different view of the law then Liberals, will, it will boil down to interpretation of the lsawwhich will vary greatly depending on thier personal views

The judges' interpretation of the law is actually secondary, the primary consideration is precedent. So the interpretation is set the first time and then clarified through future decisions.

But, ultimately, what the words of a law mean is fundamentally clearer to interpret than what's "fair", yes?

[mkemse]

The judges' interpretation of the law is actually secondary, the primary consideration is precedent. So the interpretation is set the first time and then clarified through future decisions.

But, ultimately, what the words of a law mean is fundamentally clearer to interpret than what's "fair", yes?

True, how ever if as I said before, you nd I both read the same thing, isn't there achance that your interpretation may be different then mine, this does not make either of us wrong, but when peole read anything people always interpret things differently and even "Fair" what you may find fair and I may find fair may be different

[Ragoczy]

True, how ever if as I said before, you nd I both read the same thing, isn't there achance that your interpretation may be different then mine, this does not make either of us wrong, but when peole read anything people always interpret things differently and even "Fair" what you may find fair and I may find fair may be different

But as I said, the written word is inherently clearer than "fairness". There's less room for difference. And everyone can read the words of the law, whereas we can't look into the heart of the judge and know what he'll think is fair.

Imagine if something like child support was determined by each individual judge's sense of fairness instead of legislated guidelines -- one judge thinks it's fair to allocate 80% of a man's income while another thinks 20% is fair. With written law, the rule is known.

[mkemse]

But as I said, the written word is inherently clearer than "fairness". There's less room for difference. And everyone can read the words of the law, whereas we can't look into the heart of the judge and know what he'll think is fair.

Imagine if something like child support was determined by each individual judge's sense of fairness instead of legislated guidelines -- one judge thinks it's fair to allocate 80% of a man's income while another thinks 20% is fair. With written law, the rule is known.

The written word can be interpated differnt way i read a book i get one thing out of it you reasd the same and getsomething else out of it thats all i am saying

Yes but very few Judges follow the written lat to the word or they would never have to decide how do i sentence him or her all he would have to do is say "The Law says..." which i have heard but they still make their own decion
The written law(s) to me a a guideline, i have neevr heard or read where a JUdge follwed the written law to thword if they did, the 2nd Ammendnent says NOTHING about hand gun owbership ect, so the Judges interpret what they have the way thewy want, the 2nd Ammendment is Written law but exclusive or specific guide lne all it says is "The right o bear arms will not be infrigned upon" but what type arms?? a rifle, a AK47, an Uzi, A Canno
Thw rittne law is a guideline open to interpretation, if it weren't every criminal inthis country wuld face the exact same pentaly for the same crime, which rarely happens

[bondsman]

Making decisions purely based on law can often lead to situations where most would agree the verdict is unfair. It it really a crime when an eighteen year old has sex with a seventeen year old? It's often lenient, but there is still a record. The original poll I think should have used "common sense" rather than "fairness". I agree both are subjective, but that's why we have very knowledgeable people in law that can make common sense decisions, and should be able to.

[lucy]

Making decisions purely based on law can often lead to situations where most would agree the verdict is unfair. It it really a crime when an eighteen year old has sex with a seventeen year old? It's often lenient, but there is still a record. The original poll I think should have used "common sense" rather than "fairness". I agree both are subjective, but that's why we have very knowledgeable people in law that can make common sense decisions, and should be able to.

Again, i think that exactly this should not happen. Although it sounds convincing, a judge should do nothing but decide by the law, and only the law. If this goes against fairness or common sense, the law (or constitution) should be changed. The keyword is subjective, and that's exactly what should be avoided. We all know that sticking to the law still is subjective enough, of course.
What one person in the judicial system might find fair might be utterly unfair to the next one. And the result of this would be arbitrary decisions.

[Ragoczy]

Again, i think that exactly this should not happen. Although it sounds convincing, a judge should do nothing but decide by the law, and only the law. If this goes against fairness or common sense, the law (or constitution) should be changed. The keyword is subjective, and that's exactly what should be avoided. We all know that sticking to the law still is subjective enough, of course.
What one person in the judicial system might find fair might be utterly unfair to the next one. And the result of this would be arbitrary decisions.

Exactly, a prime example of changing the law to address this is Kelo vs. New London.

A Supreme Court case where the city of New London, CT used Eminent Domain to take the private property of an individual (they owned a bed and breakfast) to give it to another private individual (a developer who wanted to build condos, I think). The cities argument was that the condos would provide more tax revenue, therefore were better for the city and, as such, met the "public use" provision of Eminent Domain.

The Court's decision (5-4) was that this action was Constitutional and legal under Connecticut and Federal law.

The dissent argued that "public use" didn't mean "public good" and that giving the land to another private owner was not Constitutional.

To decide this case on "fairness", well, fair to who?

To the owners of the bed and breakfast, it's not fair that they had their property taken.

To the city, it's not fair that they didn't have the optimal tax base provide services to the community.

To the developer, it's not fair that he can't build his condos.

To the other residents of the city, it's not fair that not collecting those higher taxes means they have to pay a larger share or have reduced services.

To the neighbors of the property, it's not fair that their nice view of a quaint bed and breakfast is changed to a high-rise condo building.

So, when we ask the judge to be "fair" -- who do we mean fair to?

The Kelo case hinged on interpretation of the "public use" clause in the Constitution and set the precedent that private property can be taken by the State and given to another private party to increase tax revenues.

Public backlash was strong and now most States have passed, or soon will, legislation to clarify "public use" to exclude transfer to private developers.

If it were left to "fairness", each instance of Eminent Domain would be left to the interpretation of the individual judge as to whether it was "fair".

[Ragoczy]

Making decisions purely based on law can often lead to situations where most would agree the verdict is unfair. It it really a crime when an eighteen year old has sex with a seventeen year old? It's often lenient, but there is still a record. The original poll I think should have used "common sense" rather than "fairness". I agree both are subjective, but that's why we have very knowledgeable people in law that can make common sense decisions, and should be able to.

First, we're talking about the Supreme Court, whose primary purpose is to decide issues of Constitutional Law, not State Criminal Court.

In State Criminal Court, the issue of "common sense", "fairness" or even "justice" has an advocate -- that being the jury. It's the jury's duty and right to judge the law in addition to the facts of the case and they can return a not guilty verdict if they believe the law is unjust or unjustly applied.

The issue of allowing "very knowledgeable people" make "common sense" decisions is that they don't all have common sense. And what you think is "common sense" might be patent absurdity to someone else -- that's why we have a codified set of laws, rather than leaving it to the arbitrary, subjective view of an individual.

[mkemse]

First, we're talking about the Supreme Court, whose primary purpose is to decide issues of Constitutional Law, not State Criminal Court.

In State Criminal Court, the issue of "common sense", "fairness" or even "justice" has an advocate -- that being the jury. It's the jury's duty and right to judge the law in addition to the facts of the case and they can return a not guilty verdict if they believe the law is unjust or unjustly applied.

The issue of allowing "very knowledgeable people" make "common sense" decisions is that they don't all have common sense. And what you think is "common sense" might be patent absurdity to someone else -- that's why we have a codified set of laws, rather than leaving it to the arbitrary, subjective view of an individual.

Yes but doesn't any Judge even at State Level use his/her "Commom Sense" I do not believe that there is any difference in "Comom Sense" used by a Judg or Judges be they State or Fedral
Andafter trial when it is up to the Judge to pass sentence not a Jury what 1 Judge State Level may pass as sentence and another one at State Level will do will be different by either thier "Commom Sense" or THEIR Interptation of the Law anss the sentences they can hand down
You can have 2 people before 2 different State Jdges passong sentence and 1 may sentence 1 person to 6 years another may sentence for the same crime 3 years. it is up to ANY Judges Interatation not only of the Crime Committed, butthe Law and the Sentences they are allowed to pass
I am not sure you can differentiate her that State Level & Federal Level operate differently

[Ragoczy]

Yes but doesn't any Judge even at State Level use his/her "Commom Sense" I do not believe that there is any difference in "Comom Sense" used by a Judg or Judges be they State or Fedral
Andafter trial when it is up to the Judge to pass sentence not a Jury what 1 Judge State Level may pass as sentence and another one at State Level will do will be different by either thier "Commom Sense" or THEIR Interptation of the Law anss the sentences they can hand down
You can have 2 people before 2 different State Jdges passong sentence and 1 may sentence 1 person to 6 years another may sentence for the same crime 3 years. it is up to ANY Judges Interatation not only of the Crime Committed, butthe Law and the Sentences they are allowed to pass
I am not sure you can differentiate her that State Level & Federal Level operate differently

They differ quite a bit -- the Supreme and Appellate Courts are designed differently and have different purposes than the Criminal and Civil Courts that a case is first heard in.

In the latter, the focus is on the facts of the case -- in the former, it's on procedure and the law. These are two different goals, and are different for reason.

The purpose of the lower Courts is to arrive at a verdict based on the facts of the case and the issue of "justice" or "fairness" is in the hands of the jury; the higher Courts have a different burden, that of judging the law as it was applied to the case. They must be guided by the actual law, not their opinion or sense of "fairness", else we're back in the days of rule of men not rule of law.

[mkemse]

But suppose the Judges on the Bench each a different interpratation of the Law??
You rea a Law I read the same Law but we interpartate it differntly, then what??

[lucy]

But suppose the Judges on the Bench each a different interpratation of the Law??
You rea a Law I read the same Law but we interpartate it differntly, then what??

Of course that happens, and i think i said so already. But at least we're starting from the same point. And when a law leaves a lot of room to interpretations, then maybe it is not a very good law.

[Ragoczy]

lucy,

Thank you, by the way, for the information on Switzerland's process, I found it very interesting.

Off-topic, but I'm curious as to the minaret issue you first described? It seems exceedingly odd to me to write into law an architectural issue like putting a tower on a building ... what's the underlying problem this law is supposed to solve?

[lucy]

lucy,

Thank you, by the way, for the information on Switzerland's process, I found it very interesting.

Off-topic, but I'm curious as to the minaret issue you first described? It seems exceedingly odd to me to write into law an architectural issue like putting a tower on a building ... what's the underlying problem this law is supposed to solve?

You're very welcome.
The minaret issue, oh my... *hangs head in shame*
Of course it's not supposed to solve any existing problem. There are currently exactly 2 minarets in all of Switzerland, and none of them causes any problem at all.
It was an initiative started by a right wing xenophobic party who also happens to be the largest party in Switzerland. Of course it's not about architecture, but a populistic initiative to 1. keep happy the right wing xenophobic idiots which are already party members, 2. try to get some new right wing xenophobic idiots to join the party and 3. to generally express their right wing xenophobic idiocy and 4. do something against islamistic terrorism. For me, that last (which is what they say) just about explains everything. I've met jellyfishes which were capable of more coherent lines of thought.

It will be voted down, tho. At least i veryveryvery much hope so.

[Thorne]

It will be voted down, tho. At least i veryveryvery much hope so.

Never underestimate the power of the right wing xenophobes. All they have to do is make it an issue of patriotism, as in, "Vote to tear down the minarets or you're a traitor!" Quite a few people will, in all likelihood, fall for that line. After all, they fell for it her in the US.

[lucy]

Never underestimate the power of the right wing xenophobes. All they have to do is make it an issue of patriotism, as in, "Vote to tear down the minarets or you're a traitor!" Quite a few people will, in all likelihood, fall for that line. After all, they fell for it her in the US.

I don't underestimate the power of idiocy, hipocrisy and xenophoby. But i also refuse to give up hope

[hopperboo]

I didn't choose either of these options. I believe there needs to be a balance between law and common sense.

Life isn't 'fair' however, and I shy away from using that term discussing judgments.



i.e. Putting someone in jail that shoots a person who is breaking into their home because the there is some loophole in the 'law' that allows that, well that is just lacking in common sense.

[denuseri]

I personally believe that our constitution is set up to be as fair as possible to as many people as possible and still retain enough common sence to work while preserving as many freedoms as it can for the individuals of the nation and still preseve the security and posterity of that same nation.

We have a Democracy in the form of a Republic as opposed to a True Democracy.

Unfortunately the moral complacency of the people is slowly eroding the system"s ability to sustain itself.

Mob rule which is what many call a true democracy has never really worked in practice to the benifit of any goven society of a certian size or larger. It works well enough in small groups to a limited extent, but when applied to any body of citizens larger than around 100 people it becomes truely untenable. Which is why even the Athenians themselves relied on the executive powers of a smaller body of government and when that didnt work a tyrant assumed authority.

[Ravenshurst]

All I have to do is think of something I said a really, REALLY long time ago...."I, state name here, do solemly swear....to defend the Constitution of the United States against all enemies both foreign and domestic..." I have changed, the world has changed, but I don't see how that releases me from my vow. I no longer defend, of course, but I still support.

Gonzo