Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

"A strong conviction that something must be done is the parent of many bad measures."
  -- Daniel Webster

Thursday, June 12, 2014 :::

The second of these two notes is valuable, but I want to play with it a bit.

The system of governance established for the federal government and, by and large, for the state governments as well, delegates to the federal government certain tasks, places certain constraints on state and federal governments, and largely leaves the political branches of those governments free to use their best judgment (or whatever else they feel like using) to make decisions within their respective purviews.  For at least two hundred years it has also been fairly standard practice for the judicial branch to step in where those governments seem to have overstepped their bounds.  In the last century this has been used in highly dubious contexts and, in less dubious contexts, in highly dubious ways; it seems to me that the system in some kind of principle is supposed to leave the legislature and executive as much freedom as practical to decide how to correct these oversteps, except to the extent they can't or won't.

While much political "discourse" make the simplifying assumption that education and health care are each homogenous, atomic things, such that one either has one or doesn't or, at best, can have more or less of it, in fact actual details of what education to provide and how (best?) to provide it are, even conditional on an agreement that the state should provide them, admissible of a wide range of reasonable beliefs.  If the outcomes in some manner consistently, for example, provide better education to white students than to black students, particularly if they do so in a way that is because of decisions or actions that seem to be motivated by race, then a strong case can be made that the courts should insist on a correction, perhaps putting in place its own (approximately minimal) correction until the other branches of government can act, and certainly doing so if the other branches demonstrate repeated failure to act.  If the legislature and executive branches are trying as hard to comply with the constitution as the judicial branch is, however, then republican principles insist that they make the decisions.

A court in California has decided that California's laws regarding public education are insufficiently attentive to their role in providing some students with a worse education than others, and (I'm not quite clear how important this is) there is a tendency for students in the former group to be racially categorized differently from students in the latter group.  The (currently stayed) injunction seems, at least to me, not to be the minimal adjustment to those rules necessary to change this, though it is at least worth noting that the "minimal adjustment" would be to spread unnecessary misery equally among students rather than to eliminate it.  New Jersey, in its feature-length constitution, guarantees students an education, and if California has such a provision, that would seem more obvious grounds for the injunction that was actually produced.  (Never mind the actual rulings to which it has led in New Jersey.)

Taranto seems to indicate that the decision in California is an extension of its Supreme Court's previous moonbattery (not his word) in its most consistent manner, and while there's something to be said in jurisprudence for consistency, there's also something lamentable about the apparent succession of rounding errors that seems to sometimes lead the court rather strikingly to 0=1.  It should also be noted that there is some consensus in the legal world that the role of a lower court is in fact to apply the higher court's previous moonbattery in its most consistent manner; especially with the stay in place, it seems like the preponderance of evidence is that the judge did his job, even if it has produced a result that everyone hates for a different reason.

::: posted by dWj at 4:43 PM

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Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

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