Wednesday, June 4, 2008

Courts reflect popular opinion, not law

This horse has been beaten to death by the libertarian blogosphere, so I won't spend too much time on it. But, as a recap: California Prop. 98 and 99 were on the ballot, with 99's supporters claiming that 98 was a back-door method of ending rent control, and 98's supporters accusing 99 of not truly protecting property rights, given that it only protects the rights of owner-occupied homes. 99 won, and 98 lost. These dueling property rights referenda were all driven by the Supreme Court's massive expansion of the government's power to use eminent domain in Kelo v. New London, which gave it the power to condemn for not only public works projects, but also for private redevelopment.

But anyway, that's not what I wanted to talk about. What I wanted to talk about was this little bit from Timothy Sandefur's blog:

If you are still confused, or don't trust Prop. 98, at least vote no on Prop. 99. It would make things far worse not only by providing fake protection, but because the courts would interpret it as meaning that Californians did not want more serious protections for property rights.

The implication is that the courts reflect popular opinion on constitutional matters, which on its face seems to be a violation of the principle of the courts as a neutral interpreter of the law and the constitution, and as a restraint on legislative and popular power. Constitutions are protections of citizens' rights against the government, and they are supposed to protect us as much from the popular sentiment of voters as from the government itself. Of course, to anyone who knows anything about the history of American judiciary, this shirking by the courts from their role as counterweights of popular opinion is nothing new. But, just in case you didn't realize it, this ought to be one more nail in the coffin of the neutral judiciary.

Edit: Apparently, my legal knowledge is lacking. See Timothy Sandefur's response in the comments section for clarification...

1 comment:

Timothy Sandefur said...

Far be it for me to defend the record of California courts on property rights issues, but I wasn't meaning that in my comment. What I meant was that under the longstanding legal rule of "exclusio alterius," courts will sometimes interpret a law by looking at what alternatives were decided against at the time that the law was enacted. If the bill says A and B, and the voters or the legislature only enact A, then courts will presume that they purposely chose not to enact B, and that fact has significance for legal interpretation in many cases. That's what I meant: courts might now say "well, we won't interpret the law to protect property rights, because Californians had the opportunity to protect property rights in a meaningful fashion, and chose not to."