Congress vs the Courts
I just watched this spontaneous discussion about fair use with Brian de Palma’s latest film and was struck by one man’s comment that fair users laws are bad and this is something that will hopefully be eventually fixed in the courts. What happened to Congress passing laws and fixing bad situations? There seems to be a common assumption in significant parts of the (left-liberal) population that the courts are the ones that will give us rights while Congress will just take them away. The sad part is, this is often how things are playing out. Just look at the Democrats craven surrender on domestic wire-tapping the other day with the House’s bill authorizing NSA wiretapping. Can you name a major development in American politics since the New Deal that was not really founded in court rulings? The Clean Air Act is the only thing that comes to mind. Can you think of any?
October 11th, 2007 at 7:07 pm
Voting Rights Act, Great Society, Gun Control Act of 1968, Welfare Reform…to name a few.
You are right, however, that the general assumption is that courts tend to protect rights and Congress tends to take them away. And indeed, none of the above (nor the Clean Air Act) add rights; generally they have expanded government presence and/or control.
I guess what I’m saying is that I tend to agree with the assumption/assessment you mention. I’m afraid that in studying these matters, I’ve been overcome by a pessimistic dread that citizens in democracies tend, more often than not, to acquiesce and even welcome statism, the consolidation of government power, and the erosion of their own liberties. I don’t mean for that to sound hysterical; it just seems to be a general trend.
This erosion of liberties is not the result of a Congress out of tune with a liberty-thirsty populace, but the result of a Congress that is very much trying to “pass laws and fix bad situations,” indeed, situations that matter very much to the American public. After all, you and I would criticize the Democrats for caving in on domestic spying issues, but plenty of average Americans swallow the short-sighted platitude that only criminals/terrorists have anything to fear from it.
The Democrats make lots of soundbites about protecting Americans from invasive law enforcement, but they really don’t have the balls to do anything about it. (Can’t look “soft on terror!”) Just like the Republicans’ supposed commitment to small government is the biggest joke in contemporary politics. (After all, they like the abstract idea, but they can’t cut a single program lest they seem “callous toward poor children.”)
October 11th, 2007 at 7:10 pm
Um, edit: when I say that the Voting Rights Act didn’t “add rights,” what I should have said is that it generally expands federal government power/presence/intervention. That said, it did extend rights to a specific minority that had been denied them by lower levels of government.
October 12th, 2007 at 12:37 am
But even many of the laws you cited were in many ways responses to landmark judicial rulings.
You are right that Congress is not really that out of tune. Many (most?) people are quite content for more draconian rules in the name of security