The ratchet principle is fine, provided there's prior agreement on what's good, otherwise it's premature to use. Presumably the anti-Jim Crow and pro-free expression decisions of the Warren Court are protected by the ratchet principle. We don't want to see backsliding because the fight was too long, hard, and principled to allow the rights to be lost.
Is the ratchet principle applied even in areas of continuing disagreement? Such as in Roe v. Wade and progeny? Doesn't the ratchet principle help explain Planned Parenthood v. Casey? Roe could've been overruled, but wasn't, although it was eaten away, apparently out of a reluctance to take away a constitutional right that had once been granted or recognized. We haven't defined ratchet principle. I see it as a reluctance to retrench on rights once established, relied on, and to a significant extent accepted as right by a thoughtful and large part of the population, that is, a right promoting human dignity, freedom, or liberty, as we see these terms used in the conlaw discussions. On another point, I'd appreciate a bit of clarification from anyone on the list, please. I'm reading Lucas A. Powe Jr.'s legal-political history of the Warren Court, a period through which I happened to have lived but not always understood. The book is "The Warren Court and American Politics," The Belknap Press of Harvard University Press, 2000. In discussing Harper v. Virginia Board of Elections, holding unconstitutional the Virginia poll tax as a violation of equal protection, Powe states, "The easiest way to deal with the constitutional issue was probably to acknowledge, despite the Court's earlier statements, that the Constitution does guarantee the right to vote. But Douglas did not do so. Instead, he called the right to vote a fundamental right to make clear that it was different from a constitutional right. Exactly how it was different was not clear." It's not clear to me either. I'd thought, maybe assumed, that when the Court declares a right to be 'fundamental' and then protects it, or requires the states to enforce it, such as in the incorporation doctrine cases where most listed textual rights in the Bill of Rights have been held fundamental and incorporated via the Fourteenth to apply to the states, that the fundamental right was now considered to be a constitutional right. Apparently I'm missing the significance of the distinction that Powe notes Douglas as making. P. 265. Incidentally, returning to the ratchet principle, at p. 264, Powe discusses Katzenbach v. Morgan, upholding 4(e) of the Voting Rights Act which protected Spanish speaking Puerto Rican migrants' right to vote in New York elections despite inability to speak English in the face of a N.Y. law requiring English speaking/reading ability. Did Congress have power to abolish a state literacy requirement? Who had power to declare a NY statute unconstitutional? Congress? Or just the Court? Powe puts the question: "If Congress has an independent ability to interpret the Constitution, are not other constitutional rights placed in jeopardy? He explains: "Brennan answered this in one of those few famous footnotes in Supreme Court opinions. Footnote Ten of Morgan announced that Congress's power went only one way [what I've been calling a/the Ratchet Principle]. It could expand on rights the Court had recognized, but it could not contract or dilute them. Why? Because Footnote Ten said so." This is a delicious book, incidentally. Robert Sheridan [EMAIL PROTECTED] > [Original Message] > From: Scarberry, Mark <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 8/5/2003 2:40:08 PM > Subject: Re: Referring to Foreign Law > > If a ratchet principle applies, so that we only pay serious attention to > foreign law that is better than ours, then why do we need to look at foreign > law at all? If there is some way of seeing that another approach is better > than the existing approach, and if courts have the authority and duty to > improve the law, then the foreign decisions are superfluous (unless we are > so hidebound that we cannot imagine another approach until we see it > embodied in a foreign decision). > > Of course, the question whether a particular suggested change in our law > enhances human dignity or otherwise would be desirable is often highly > contested. Many people believe our present very loose abortion laws (as > required by interpretations of the US Const) are extremely damaging of human > dignity, and that they allow the destruction of human life on a far larger > scale than the killings done by way of capital punishment. Persons taking > that view would of course say that the ratchet would permit US courts to > take seriously the European approach that is more protective of the unborn. > Others would disagree. And we couldn't tell how the ratchet should work > without deciding who was right, in which case we would not need to look to > foreign law. > > Thus, a ratchet principle is, in my view, useless. > > Mark S. Scarberry > Pepperdine University School of Law > > > -----Original Message----- > From: Robert Sheridan [mailto:[EMAIL PROTECTED] > Sent: Tuesday, August 05, 2003 12:48 PM > To: [EMAIL PROTECTED] > Subject: Re: Referring to Foreign Law > > Mark asks: "...I wonder whether Jack thinks US courts should rethink their > abortion jurisprudence in light of the substantially more restrictive > approaches taken in most other countries." > > I feel like jumping in, for me. Jack, I think, can take care of himself. > > I don't think we're talking about adopting foreign law. We're asking > whether and when it's okay for the Court to cite to it as being a good > idea. The question is, "What are the neighbors doing?" Do they use the > death penalty willy-nilly, or have they outlawed it. Who are they? The > Brits? The French? Saddam's Iraqis? The Saudis? We're free to look > around us and see what is likely to work for us and what is anathema. > > One would hope that the One Way Ratchet Principle would operate, such that > values and laws that militate in favor of greater human freedom or liberty > are adopted, as opposed to those having the effect of retrenching or > constricting individual freedom & liberty. > > Thus one would ask why certain countries have abolished the death penalty, > not why others have run amok with it, or why some other countries have no > divorce (e.g. Philippines) or abortion rights. > > Look abroad, in other words, to enhance human dignity, not diminish it. If > the neighbors can get along without draconian laws, maybe so should we. > > As I understand it Scalia objected to that, and I wonder why. He's not > opposed to enhancing human freedom, liberty, or dignity, is he? > > Robert Sheridan > [EMAIL PROTECTED] > > > > [Original Message] > > From: Scarberry, Mark <[EMAIL PROTECTED]> > > To: <[EMAIL PROTECTED]> > > Date: 8/5/2003 8:49:49 AM > > Subject: Re: Referring to Foreign Law > > > > It hardly is surprising that US courts would consider respectfully > decisions > > from other countries regarding "belligerent and neutral rights." The law > of > > war is one of the traditional kinds of international law. Whether > decisions > > from other nations should influence our courts in deciding internal > domestic > > matters is the question we've been discussing, I think. I wonder whether > > Jack thinks US courts should rethink their abortion jurisprudence in light > > of the substantially more restrictive approaches taken in most other > > countries. > > > > Mark S. Scarberry > > Pepperdine Univ. School of Law > > > > -----Original Message----- > > From: Jack Balkin > > To: [EMAIL PROTECTED] > > Sent: 8/5/2003 12:39 AM > > Subject: Re: Referring to Foreign Law > > > > I recently discovered this outrageous quote from a well known American > > jurist. I think this man should be immediately impeached: > > > > > > > > The law of nations is the great source from which we derive those rules, > > respecting belligerent and neutral rights, which are recognized by all > > civilized and commercial states throughout Europe and America. This law > > is in part unwritten, and in part conventional. To ascertain that which > > is unwritten, we resort to the great principles of reason and justice: > > but, as these principles will be differently understood by different > > nations under different circumstances, we consider them as being, in > > some degree, fixed and rendered stable by a s[e]ries of judicial > > decisions. The decisions of the Courts of every country, so far as they > > are founded upon a law common to every country, will be received, not as > > authority, but with respect. The decisions of the Courts of every > > country show how the law of nations, in the given case, is understood in > > that country, and will be considered in adopting the rule which is to > > prevail in this. > > > > > > > > > > Great principles of reason and justice? Receiving decisions of the > > Courts of every country with respect? My goodness, is there no end this > > man's anti-Americanism and his rank judicial activism? ;-) > > > > Jack Balkin > > > > > > > > At 12:00 AM 8/5/2003 -0700, you wrote: > > > > > > Date: Mon, 4 Aug 2003 12:10:04 -0700 > > From: Robert Sheridan <[EMAIL PROTECTED]> > > Subject: Re: Referring to Foreign Law > > MIME-Version: 1.0 > > Content-Type: text/plain; charset=US-ASCII > > > > I was [a little] surprised to see the objection by Scalia to referring > > to > > foreign law as some authority, and, if memory serves, Thomas as well in > > a > > different case.
