Tuesday, October 11, 2005

A Touch of Gravitas: Harlan on the Seperation o' Powers

I mentioned the horrible (7 to 1) Plessy v. Ferguson decision earlier in this post. At the risk of setting off KAR's Gravitas Emegency Alert System, I thought it might be edifying to share an excerpt from that case's lone dissent by Justice Harlan. Despite the dissent's general windiness and Harlan's observations on racial equality that can only charitably be descibed as "quaint," this passage holds as much relevence today as it did 130 years ago [emphasis mine]:

The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the la[w] . Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained, 'the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.' Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are co-ordinate and separate. Each much keep within the limits defined by the constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly, sometimes literally, in order to carry out the legisla- [163 U.S. 537, 559] tive will. But, however construed, the intent of the legislature is to be respected if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.

Got that?

Contrary to what the left-wing know-nothings want you to believe, the originalist point of view does not grant absolute deference to legislation. But it does require a little bit more than a creative line of reasoning that takes one several iterations from the text - or the intent - behind a constitutional provision. It is instructive to note that despite the tone and reasoning of the above-quoted passage, Harlan would have struck down the Louisiana law in question.

In Plessy, it was the activist wing - the "living constitution" crowd - of the court upholding a racist law by reading a word into the 14th amendment that wasn't there ("separate"). It was the strict construtionist who looked really really hard at the document, but was unwilling to see the penumbrae and eminations that were not there.

I wonder what NARAL, Ted Kennedy and Nancy Pelosi would think of that; in the off-chance they were experiencing one of their periodic lucid states of mind.

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