Simon:

No. At least not at the federal level.

What has this got to do with the federal as against the state courts? Do you think that state judges have a right to overturn unjust state laws regardless of the provisions of constitutions of the U.S. or their own state–even though federal judges (on your view) do not? If so, what makes the difference between federal and state judges? If not, then why bring it up?

The trouble begins when (as Tully alluded to) you come to realize that different people have different ideas about what is and isn’t just.

I don’t see what the trouble is, and I don’t see the pertinence of the objections that Tully raised, unless you’ve misunderstood my question. I didn’t ask whether judges are required to uphold laws they believe to be unjust. I asked whether they are required to uphold laws that actually are unjust, which is a different question.

If there are requirements of justice which are binding, and discoverable, independently of the contents of any statutory or constitutional law, then clearly judges can’t have any duty to overturn a law in light of them. But if you intend to take that line of argument, then you’ll have your own problems to deal with. (Among other things, it entails the awkward conclusion that there are no independent standards for judging one legal system as better from the standpoint of justice than any other. This seems clearly wrong. Part of the reason to prefer modern American courts to the Star Chamber or the Spanish Inquisition or for that matter the American courts during the days of the Fugitive Slave Act, is presumably that the modern American courts do a better job of securing justice. But in order for you to say so, it must be the case that there are some independent requirements of justice against which all four systems can be held up and compared. In any case, if you don’t think so, that’s the substantive position you’ll need to try and defend, God help you.)

If, on the other hand, there are such requirements, then, whatever those requirements may in fact be, there must be at least some conceivable cases in which a case comes before a judge where (1) the statute which the judge is asked to uphold in fact violates one or more of the requirements of justice, and (2) the judge knows about the conflict between the statute and those requirements of justice. My question is about what the judge’s rights and obligations are in such a situation.

What you’re urging is for judges to be invested with the power (I put it prospectively because they certainly don’t have that power now) to eliminate the work of the legislature and substitute in their own judgment. That’s not only pernicious to a democratic system, it obliterates the rule of law, because if the law is whatever the judge in a given case thinks is a just result in that case, no one can know in advance what the law is and take reasonable steps to conform their behavior to it. It becomes a form of secret law, and secret laws are inherently tyrannical.

Well, no, what I asked is whether judges have any duty to uphold laws which are in fact violations of the substantive requirements of interpersonal justice. I’ve neither said nor asked anything about whether judges should be able to throw out laws based on any old belief they happen to have about justice, whether mistaken or not. I’m certainly willing to grant that judges should not throw out laws based on beliefs about justice which are in fact mistaken.

Given that we are talking only about cases in which the law in question actually is unjust, i.e., where enforcing it would involve committing an injustice against one or more identifiable victims, I cannot see any reason to accept your claim that overturning the law in question would involve tyranny, let alone being “inherently tyrannical.” On every definition of “tyranny” I’m aware of, it’s enforcing an unjust law that’s tyrannical, not obstructing its enforcement.

In sum, Judges have no “duty” to collaborate in the enforcement of laws that they personally regard as unjust (in such circumstances they can and ought to resign) …

Again, the question is not about what judges “personally regard as unjust,” but rather what is in fact unjust. So, taking that modification into account, and taking your (well-taken) suggestion that resignation is an alternative option into consideration, I reiterate my question to you, mutatis mutandis:

Is it your view that no judge has a duty to directly collaborate in inflicting an injustice (since she can resign rather than doing so), but that she is bound in conscience to step aside and allow someone else to inflict the injustice, even though she could have obstructed or prevented the injustice from being inflicted?

If so, why? So far the only answer you’ve given is the political expedience of compromise in majoritarian democracy. But if expedience is no excuse for personally collaborating in the sin of commission (which you seem to grant, when you suggest that the judge resign), then I cannot see why it’s a good excuse for the sin of omission, either.

Picture the scene: next February, having clawed itself out of a deep, deep hole, the Democratic party is finally in a position to start pushing its agenda through a Democratic Congress to be signed by a Democratic President. Because this is a hypothetical, we can assume that all this legislation is actually constitutional. But the courts strike down the whole lot, arguing that it’s unjust. Are you happy with such a result? I doubt it.

I almost certainly would be happy with that result, given what the Democratic Party’s agenda has generally been when it has been in power. Perhaps you’re making some unwarranted assumptions about my political views.

The only warrant for the judiciary to strike down state laws on any subject is if they attempt to exercise a power that the federal Constitution has removed from the states or if they exercise a power they would generally possess in a manner that’s illegitimate because it infringes on constiutionally-guaranteed rights ….

What if the state law is unjust?

Do you think that judges have a duty to collaborate in the enforcement of unjust laws? If so, why? If not, wouldn’t it follow that they can rightfully set them aside, whatever the United States Constitution may or may not say on the matter?

Constant: the emancipation of the slaves by a decree from a victorious Washington DC was still very right.

Yes, I agree, and this in spite of my belief that the Southern states should have been left alone to secede in peace. Forcing white Southerners back into the Union at bayonet-point and achieving power over them through conquest and occupation was a moral crime, but using that position of power, once achieved, to declare Southern slaves emancipated, is no crime; kidnappers and robbers have no right to go on kidnapping and robbing, so there’s no victim in that particular case. And it’s a very foolish form of libertarianism that would object on “federalist” grounds. I think, actually, that most libertarians would agree, in the case of emancipation, and that “federalist” objections to Roe v. Wade really have much more to do with ambivalence about abortion than they do with a consistent decentralism.

Constant: And similarly, we might say, Roe v. Wade was handed down by Washington DC, and thus Rad Geek was really twisting the facts with his summary of what happened, but it was still a great thing for Washington DC to do.

Well, my claim wasn’t that Roe specifically didn’t originate in D.C. Obviously it did. I was making a causal claim, to the effect that something other than the good graces of the Nine made it inevitable that either Roe, or some similarly sweeping victory, would eventually be won. So the facts that I cite as an explanation are those that I think best support the relevant counterfactuals. If the Nine hadn’t handed down a (mostly) pro-choice ruling in Roe, then (I would argue) the abortion law repeal movement would have won through a different proximate cause, such as state-level legislative repeal, and/or through a growing network for safe and affordable illegal abortions. On the other hand, if not for the repeal movement, I doubt that Roe ever would have been handed down. Hence the claim that the movement is a better explanation for the eventual repeal than the Supreme Court is.

The Thirteenth Amendment wasn’t a victory against government; it was a triumph of govt. It made a law universal by decree of a rump Congress and several states coerced into passing it while under military occupation. It spawned Jim Crow. If a rump Congress could force every American everywhere to live by a particular interpretation of such a morally divisive issue without any local input, it’s no wonder that the people on the losing side decided to change their methods and goals to that of using the same power to enact their own version of white supremacy upon everyone else.

Keith,

The fact that Roe has survived this long in spite of long-standing presidential opposition has little to do with any great security that the ruling (which is currently supported by at best a 5-4 margin) has, and a lot more to do with the fact that historical accidents — like Bush Sr.’s deicision to appoint the moderate Souter, or the counter-to-expectations behavior of Reagan appointees Sandra Day O’Connor and Anthony Kennedy — can profoundly influence the direction of a divided court for long periods of time, thanks to lifetime terms and the small number of justices involved. The Roberts court has already upheld substantial new federal restrictions on abortion in Gonzales v. Carhart, and several anti-abortion state legislatures are already chomping at the bit to pass state abortion laws in order to force a review of Roe v. Wade before the new court. You’ll forgive me if I’m not as sanguine as you are about the threat of new forced pregnancy laws.

As for your comments on immigration, I simply have no idea what you mean. Immigrants are wanted in the United States; they come here, in spite of great physical danger from both the law and the physical conditions that the legal situation forces them to endure in their crossing, precisely because there is ample work to find. The reason that every year there’s one or two dozen immigrants who die from exposure or dehydration in the southwestern deserts is precisely because the statist federal immigration controls, which Ron Paul wants to enforce even more aggressively and rigidly than they are currently enforced, force them to try to cross in remote desert areas where they can evade detection, rather than at urban border crossings in Tijuana, Juarez, Nuevo Laredo, and similar border towns. Ron Paul has directly stated that he wants to continue, and in fact escalate, the border policies that cause these deaths. He also wants internal immigration cops to enforce immigration controls even more aggressively than they have been, which means more of the “Ihre Papiere, bitte” treatment for both non-immigrants and immigrants, more paramilitary raids on workplaces, and threatening millions of undocumented immigrants with arrest, jail, and government-imposed exile from their current homes, their livelihood, and their families.

As for feminism, you wrote: “In your comment above you laid down a laundry list of statist policies that you support in the name of radical feminism”.

Could you please list a single statist policy that I stated my support for in my comment above?

As I explicitly stated in my comments, all of the items that I listed — broad sexual harassment policies, free daycare, employer-paid maternity leave, and worker ownership of the means of production — are things that can be brought about voluntarily within a free market, without government intervention.

The issue of libertarianism or statism only arises when it comes to the question of MEANS — whether these projects are to be brought about through voluntary cooperation or through government coercion. Government-imposed sexual harassment policies (whether broad or narrow) are statist; government-funded daycare is statist; government-required paid maternity leave is statist; but in a free market employers can adopt any sexual harassment policy they want, including the kinds of policies that radical feminists favor; and community groups can provide free or sliding-scale daycare if they feel like it; and employers can offer whatever sorts of parental leave policies they like, including gender-neutral employer-paid leave benefits of the kind that liberal feminists generally advocate.

You might think that these sorts of things won’t happen on a free market, because they are impractical ideas; you might think that they oughtn’t happen on a free market, because they are foolish ideas. But you had better make sure that you understand the difference between free market principles and favoritism for your preferred business model. And, as I directly stated above, and as Roderick and I also spent quite a bit of time explaining in detail in the essay that, I’ve repeatedly referred you to, there is an existing tendency within radical feminism that has favored grassroots cooperative action rather than attempts to seize or influence state power, and it is that kind of non-statist or anti-statist activism that Roderick and I support.

It is extremely frustrating to have to repeat this point once again when I already made the same point obliquely in the post you were putatively replying to, and made it directly and in some detail in the essay linked from that post, and made it directly again in the rejoinder to your comments immediately above your most recent reply.

You wrote: “… excuse me for questioning your commitment to limited government”

I have no commitment whatsoever to limited government. But your suspicions are pointed in the wrong direction. I am an anarchist, and so I oppose both limited statism and welfare statism. Less destructive governments are preferable to more destructive governments, but given the abject failure of every single attempt in the history of the planet earth to sustain a “limited government” against mission creep and the ambitions of professional politicians, I don’t think it’s worth devoting a lot of energy to such a doomed project.

If you seriously believe that Chairman Ron’s Great Libertarian Electoral Revolution is the only real shot we have to resist an ongoing slide into totalitarian hell, then I’d suggest you get out of the country as quickly as possible, because your plan has an awfully limited chance of success, and if he fails to make it past the primaries, then you have about 1-3 months before it’s all over.

Personally, I’m rather more optimistic, because I don’t think that the only way for good men and women to do something is for them to support a candidate for a government election. I prefer to spend my time on forms of activism that are more practical than the proven failure of libertarian electioneering.