What means &#39;higher democracy&#39; in the Constitution? Source: Richard A. Posner, How Judges Think (2008). p 332 Middle. The problem is not that he is asking the court to weigh impondera. bles. For while "weighing imponderables" sounds like an oxymoron ("imponderable" is from the Latin ponderare, meaning "to weigh"), it isn't quite. Often a judge can know, even without quantification, that one interest at stake in a case is weightier than another. In a negligence case neither the burden of precautions nor the probability and magni- tude of the accident that will occur if the precautions are not taken may be quantified or even quantifiable, yet it may be apparent that there isa grave risk of a serious accident that could easily be averted (negligence), or that the cost of the precautions would be disproportionate to the slight risk of a minor accident (no negligence). That is the "tolerable windows" approach that I advocated in chapter 9. But the key terms in Breyers test, such as "impact upon the publicS confidence in, and ability to communicate through, the electoral process" and the "importance" of a challenged law's "electoral and speech-related benefits," are so nebu- Ious that they cannot be weighed against each other at all. High-level ab- stractions such as "democracy" and "active liberty" can be arrayed with equal plausibility on either side of constitutional questions. They are makeweights. A decision invalidating a statute on constitutional grounds may seem undemocratic, but even if it is not a democracy-enhancing de- cision (as reapportionment decisions are widely thought to be) it can be defended as an application of the "higher democracy" embodied in the Constitution. So originalists are democrats along with loose construc- uonjsts. Likewise federalists. who want to honor the democratic choices made at the state and local levels, and nationalists who want to honor the democratic chojces made at the federal level. Googling yields nothing.
First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows.
I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993).
If the Senate took the extreme measure of attempting to abolish the Supreme Court, there's nothing in the Constitution that requires them to confirm any of the President's nominees. However, attempting to dismantle one of the three branches would be nothing short of a coup d'etat. The president has some options here: He [the President] may, on extraordinary Occasions, convene both Houses [of Congress], or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper. -- Article 2, Sec. 3 Basically, this means that, in an extraordinary circumstance (total defiance of the entire Senate would easily qualify), the President can lock the Senate in their chamber until they straighten their heads out. And when I say "lock them in", I don't mean that figuratively. The Constitution requires that a majority of each house be present to constitute a quorum to do business. The President could order up to 51 Senators to convene, and if they refused, could order the FBI or whoever to physically arrest them and drag them to the capitol building. This was actually done in Wisconsin by Gov. Scott Walker in 2011 when 14 Democrat Senators fled the state to avoid the quorum needed to vote on a controversial bill that they couldn't block. It would be messy for sure, and as far as I know, has never been done with the U.S. Senate. But there is precedent for it. Additionally, the President could use his vacancy power and just appoint a justice. Legally, he would have to wait for the Senate to be in recess, and the Senate would likely arrange things so that never happens. However, if there were no justices left, he could just appoint a Chief Justice (the Constitution provides that there be at least one justice). Even if he did this in the most "in-your-face" illegal way, with both middle fingers extended, the only judge that can tell him he did wrong is the guy he just seated. Of course, the Senate would move to impeach that judge, and probably the President too for having appointed him illegally, but you need a supermajority of both houses to remove them from office. If you had such a supermajority, then the game is over at this point; there's no way the President would step down in such a situation (who would force him?) and we're in a civil war because we don't have a functional government anymore. In reality, this isn't an "interesting twist in constitutional law that the Founding Fathers may not have considered." It's that if Congress ever went totally off the rails like that, the President, or the people would have to step up and hope they could end the standoff peacefully without resorting to violence, because this is the kind of thing that revolutions are fought over.
Art. 1 Sec. 9(8) says two different things. The first says that "No Title of Nobility shall be granted by the United States". That means that the US cannot grant a title (hereditary or otherwise) like "Duke of Detroit", "Prince of Princeton". It does not prohibit the practice of speaking of POTUS as "His Highness, the President of the United States", likewise "His Elective Majesty" or "His Excellency", but early discussions in the Senate put paid to even calling a president this, and instead he is just called "Mr. President" (just as judges are called "your honor"). An appellation such as "Chief Justice" is not a title of nobility, it is a job description. We don't have titles of nobility granted by the government. There is a constitutional amendment, the Titles of Nobility Amendment, which was considered but not ratified, which is stricter on the anti-nobility statce. Then there is second thing, that prohibits officials from "accept[ing] of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state", without Congressional approval. Accordingly, the president, sec'y of state or a congressman cannot accept a gift, such as a car, from a foreign power, unless it is approved by Congress. Every congressional "exception" was approved by Congress; moreover, such benefits are not from a foreign power. The Speech or Debate Clause Art. I, Sec.6(1) in fact gives congressmen a privilege (immunity from arrest) which ordinary citizens do not have. So there is no connection between titles of nobility and free bean soup or whatever legal exemptions Congress may give itself.
The holding of the Miranda decision says: (d) In the absence of other effective measures, the following procedures to safeguard the Fifth Amendment privilege must be observed: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him The body of the opinion also says The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. although also He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law When SCOTUS says do this, that is the law. Since SCOTUS say can, will, and can and will, the only safe course of action is to say can and will. This page has some interesting discussion about the problem of the meaning of modals in a legal context. The Miranda warning does not constitute a contractual promise between the arresting officer and the arrestee, so "will" cannot be construed as a binding promise to prosecute and use the evidence in court. "Will" can only be construed as a prediction, as do "may" and "might". If the warning said "can, and mightmay be used against you", that choice or wording would suggest that the probability of statements being used against you is low – that would be totally misleading. The strongest modal should be used, because the probability is high that some statement will indeed be used against the person. Simply saying "can" suggests that it's a mere possibility, as opposed to a probability. "Can and will" is thus the appropriate construction for conveying the probability that your confession will be used against you. "Shall" shall not be used (it is confusing since it doesn't mean what the legal profession sometimes thinks it means); "must" is just plain wrong (it's legally meaningless to say "anything you say must be used against you", when many things that a person says would be inadmissible).
If you have something to say, you should have said it before now When a judge is about to hand down a decision the case is all but over. Just like figure skating at the Olympics, the points are scored even if nobody but the judges know what they are yet. The onus is on the parties to bring forward all the evidence and make all the submissions on the law that they want the judge to consider before and during the hearing. If they didn't then that's their fault and they can't introduce new stuff now. Now, it's not uncommon for a judge to share their thoughts during the hearing or in writing when considering written submissions. This is because their thinking on the law is at variance with what the parties are contending. The plaintiff says the law is X, the defendant says the law is Y, the judge thinks they're both idiots and the law is clearly Z. They will usually call for submissions on this because the judge's role is to decide the dispute between the parties on the evidence the contend -not to impose the judge's interpretation on them; by doing this the parties may relies the judge is right and a lot of the dispute disappears or they may convince the judge that they are wrong (it's not unknown) and move on from a clear agreed position.
Marbury V. Madison did not establish judicial review. It was simply the first case where that power was used. It was clearly spelled out in The Federalist #78 that this power would exist in the new constitution, and those who voted to ratify it understood, or should have understood, that it would exist. All that Marbury V. Madison decided was that the Supreme court did not have original jurisdiction to issue Writs of Mandamus That could be overturned, or the constitution could be amended to grant such jurisdiction to SCOTUS. That would not have any major effects on the US judicial system as far as I can tell. I suppose that the constitution could be amended so as to deny the power of judicial review to the courts. But I think the resulting system would be potentially unstable, and this would require a far more fundamental change than simply &quot;overruling Marbury V. Madison&quot; As #78 of The Federalist said: By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. (emphasis added) The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . . [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
It is binding precedent for lower federal courts in the Ninth Circuit. They are required to follow it. It is persuasive precedent for the other circuits and for state courts. They may be persuaded by the reasoning and will consider the fact that the Ninth Circuit held as it did to be one factor in their decision-making, but they can make a different decision if they want to. Some courts are also more persuasive than others, although this is usually not explicitly acknowledged in written opinions. For example, state courts in the Ninth Circuit are likely to give more weight to a Ninth Circuit opinion than they are to give weight to a decision from another circuit. Cases from the Second Circuit are more likely to be persuasive than cases from other circuits, because of its reputation. Cases from the Southern District of New York are more likely to be persuasive than cases from most other non-local District Courts. There is also a personal reputation function that comes into play when looking at persuasive decisions. Some judges have a better reputation or a better reputation with a particular other judge, and their decisions may be considered more carefully. This is not explicit, but it means a good lawyer will mention the judge's name when a case in support of his position was decided by a well-regarded judge. Finally, the Ninth Circuit's holding would be persuasive precedent for the Supreme Court. You could write law review articles about this, but to dip one toe in: they may be persuaded by the reasoning and it matters to their function of providing unifying law, so especially during the process of applying for a writ of certiorari, they will care what different circuits have held on an issue and which circuits are going which way. But they are not bound by the circuit courts, and will overturn all of the circuits if they think that's the right decision. They did that a while ago with a statute about what it meant to use a firearm while committing a crime, for example.