Dave's Solo Performance, Act 2

I thought I was done pummeling DaveScot's immeasurable ignorance on this issue, but then I saw this comment where he interjects his thoughts in bold. It's just astonishing how someone can be so wrong about virtually everything and be totally unaware of it. It's like the perfect storm of stupidity. And you're gonna love how he's backpeddling now. After the commenter informs him of what I've already told him, that even if you got a jury trial the jury could only decide on the issie of damages, not on the constitutional questions, he now says he knew that:

This is my understanding as well.

Uh, yeah. Does anyone really believe that he knew that a day or two ago when he posted that nonsene? Of course not. It was clear that he actually believed that the jury would be the ones to decide whether the Constitution was violated or not and that the jury would be unlikely to find that it was in that case. So here's how he's frantically spinning this to make it seem like he meant that all along:

Keep in mind that the jury makes the fact findings and the judge is obliged to use those findings of fact (see latter part of the 7th amendment below). I don't see how the judge could rule for the plaintiffs in the injunctive relief case when a jury didn't find sufficient facts to support it.

As my buddy Dan just said to me on the phone, Dave is the master at digging a hole for himself and then jumping in and continuing to dig until eventually he's covered himself over. He backs up one ignorant statement by pretending to know the opposite all along, and then defends it with an equally ignorant statement. Juries are, of course, the primary finders of fact, but they are finders of fact only in relation to the verdict they are empowered to render.

Even in the totally implausible case that you got both a jury trial (on the damages issue) and a judge trial (on the injunctive or declaratory issues) - implausible because, as we keep explaining to him, awards of fees and costs do not magically become punitive damages just because he wants to relabel them - the jury would not issue any "findings of fact" that the judge would be obliged to accept. Dave really seems to think that the jury in such a case would decide, for instance, whether or not the school board had a religious purpose in mind when they passed the policy, or whether or not ID is substantially a religious doctrine. But that is false. The jury would not issue any findings of fact on that matter, only the judge would decide those questions. He's constructed this bizarre hypothetical and imposed his own set of rules on it. It's quite looney. But he's not done yet.

This jury/no jury thing is really just a power struggle between authoritarian and democratic inclinations. Judges naturally have little desire to give up part of their power to a jury. I'm usually inclined towards dilution of power by democratic means when possible and practical.

Well that's great, Dave, but that's not the system we have. The Constitution provides for unelected judges with lifetime appointments precisely for the purpose of avoiding having their decisions second-guessed and overruled by "democratic inclinations". In fact, as they wrote the constitution originally, judges were even confirmed for the bench by an unelected body (the Senate, which was appointed as the Constitution was originally written, not elected). The founding fathers clearly didn't share Dave's democratic vision.

Maybe every U.S. citizen should be obliged to serve four years in the military in order to better appreciate the democracy you're defending in it.

Or maybe every US citizen should learn the history of the Constitution. When Dave was in the military, he was not obliged to defend "democracy", he was obliged to defend the Constitution. And that document is, in many ways, anti-democratic. Where democracy and liberty are in conflict, the Constitution comes down squarely in favor of liberty and against democracy. That was the entire purpose of the Bill of Rights, to place our liberty outside the reach of democratic decision making.

And one of the primary features of our constitutional system is that matters of constitutional interpretation are decided not by democratic majorities but by unelected judges. And they gave those judges lifetime appointments for the express purpose of insulating them from any influence by democratic majorities. Forget about every citizen serving in the military, let's make every citizen read the Federalist papers, particularly those that explained and defended the role of the judiciary.

Read Federalist 78, which clearly explains that judges were to serve as an "intermediate body" between "the people and the legislature" and that they were empowered "to keep the latter within the limits assigned to their authority". The power to decide constitutional questions was given to those judges quite intentionally. Hamilton writes, "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." And why did he say that? Because, he argued, without this safeguard against the whim of democratic majorities to destroy liberty, none of our rights are safe:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. 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.

The Constitution was written to protect our liberty, not to protect "democracy". And the founders fully realized that a democratic government was just as likely, in some cases perhaps more so, to violate our inalienable rights as a king or a dictator. And they believed that having judges, beholden to the Constitution and not to the will of the people, with the power to strike down even the most popular acts if they are contrary to the Constitution, was the best way to do so. History has proven them correct, and thus proven Dave wrong. As usual.