Posted on 08/23/2011 7:07:30 PM PDT by stevelackner
Of course Wickard v Fillburn changed all that. Raich recently reaffirmed Wickard (with Scalia concurring.)
I was wondering about that - it seems a counterexample to the opening premise of the article.
We live in an imperfect world chock full of imperfect people. We live in a world where the pursuit of excellence is about the best we can hope for, where "good enough" is the most likely and most frequent outcome. You want perfection? Knock yourself out but in the meantime I'll sit on my butt knowing full well my list will contain exactly ZERO items. And I hopefully will have actually accomplished something constructive while you tilt at windmills.
Straw man argument of the lamest kind. You suggest it’s foolish to improve on something because perfection is not an option? Then why have an amendment process? For decoration? Come back when you have an opinion worth reading.
I see comprehension is not a strong suit of yours either. I should have known. Would it help if I drew some pictures or maybe some diagrams for you to look at? In any case, you should get started on your list forthwith. You have a lot of work to do and you’re wasting valuable time.
Draw pictures of what? Straw men?
The problem is not with Marbury, but with the way it in turn has been interpreted. The job of the court is in part to determine what the law is (especially in cases where the meaning is unclear). Marbury is quite right in that. The problem comes when the statement "If the courts do their job, what they say will match what the law says", mutates into "Whatever the courts say is the law."
Further, while it is entirely proper for courts to "legislate from the bench" in cases where the laws are otherwise ambiguous, it is also entirely proper for legislatures to respond to such rulings by writing their own legislation, and such legislation should preempt any rulings that were written in their absence.
Interesting. Prior to Marbury, where can I find this interpretation of the role and powers of the judiciary?
It's been a long time since I read some interesting papers on the subject, but I would suggest that what's important to recognize is that nothing in the Constitution gives judicial rulings any authority above that of the Constitution itself or laws passed thereunder. Not all statutes passed by Congress are legitimate, and if Congress passes an illegitimate statute (e.g. one which would violate the Constitution) such a statute has no legitimate authority whatsoever, and so the Court has the authority and duty to overrule it. That the Court has the authority to overrule illegitimate statutes does not imply that it has the authority to overrule legitimate ones.
As for the legitimate scope of 'judicial legislation', imagine that there is a jellybean-counting contest. Contestants A, B, C, D, and E submit guesses of 1000, 1001, 1002, 1003, and 1004 jellybeans, respectively. According to the rules, a person appointed as the official jellybean judge is supposed to designate as a winner the person who is closest to stating the number of jellybeans in the jar. That person examines the contents of the jar and finds 500 perfect red jellybeans, 501 perfect blue jellybeans, half of a red jellybean, half of a blue jellybean, and nothing else resembling any part of a jellybean.
If nothing in the rules says anything about how half-jellybeans should be counted, the judge would have to invent his own rule. Maybe count only whole jellybeans, maybe count anything that's clearly part of a distinct jellybean (since the two halves are different colors, they are clearly not halves of the same jellybean), or maybe count the two half-jellybeans as one whole jellybean. Absent something in the rules specifying otherwise, the judge would be perfectly within his authority to select any of those counting methods. If, however, the contest sponsors decided to explicitly specify a counting method for succeeding contests, they would be within their authority to do so without regard for the method chosen by the judge, and the judge would be required to abide by their selection in future contests.
Everything you've described ascribes power to judges that they do NOT have.
Short of Constitutional Amendment (which, according to your interpretation, would also be subject to the whims of the judiciary), it grants to judges the final and absolute authority to determine what is legitimate or illegitimate according to their view of the Constitution.
That is NOT their power. It is NOT their job. It is NOT their right.
It is the right, the power, and the job of the people.
Since Marbury, the people have foolishly chosen (through their representatives to Congress) to allow this power to be (unconstitutionally) delegated to appointed (i.e. UNelected), life-term judges. Should the people continue to allow their right to be usurped by the judiciary, there's nothing anyone can do about it. But this stupid choice does not change the fact that -- according to the principles that underlie the Constitution -- determining what is Constitutionally legitimate or illegitimate is the right and the power of the people, and the people alone ... and NOT the Judiciary.
There could have been included in the Constitution additional checks and balances designed to prevent exactly this usurpation of power by the judiciary. In fact, such checks on the power of the judiciary (although not specific language) were suggested ... indeed, demanded. Those suggestions and demands were ignored and we got what we now have -- judicial tyranny.
Nevertheless, to say that this power lies correctly, properly, rightfully, and justly with the judiciary is WRONG .... dead, flat wrong.
Besides which, it avoids my original question.
Perhaps you misunderstood me. If Congress were to pass a statute which would contradict the Constitution, judges would be duty-bound to regard it as void. The statute would not be void because the judges declared it to be so; it would be void because the Supreme Law of the Land declared it to be so. Conversely, if Congress passes a legitimate statute, judges are duty-bound to uphold it, since the Constitution specifies that legitimate statutes are part of the Supreme Law of the Land.
The difficulty comes not from recognizing that judges are duty-bound to regard illegitimate statutes as void and legitimate statutes is valid, but rather from an unwillingness to recognizes that not all judicial decisions are legitimate. It is that unwillingness to question the legitimacy of judicial decisions that has enabled the gross judicial overstepping of authority.
Further, while courts have, and require, legitimate authority to draft and apply interim rules when necessary to resolve ambiguities in existing laws, this does not grant such interim rules any authority beyond what's necessary to resolve ambiguity. Only in cases where ambiguity can be demonstrated without regard to precedent should precedent even be considered. Otherwise, if existing rules would be unambiguous, precedent is either going to be (1) inapplicable to the present situation, because something in the case is different; (2) redundant, since the outcome it would compel would have been reached even in its absence; or (3) illegitimate, because it was decided contrary to what the law requires.
While a federal statute may legitimately restrict a class of actions which would typically affect interstate commerce in various ways without stating a specific nexus (since different actions in the class might affect interstate commerce in different ways), a prosecutor bringing charges under such a statute should be required to convince a jury that allowing the defendant's particular actions would interfere with the government's authority to regulate interstate commerce. Likewise, prosecutors should be required not only to convince a judge that evidence was not gathered in patently-illegitimate fashion, but also convince a jury that things like searches were "reasonable", that bona fide "probable cause" existed, etc. Note that in many cases, such determinations will depend on things like witness credibility, which are clearly matters for jurors rather than judges to determine.
The importance of jurors, however, does not imply that resolutions of ambiguous laws should never fall to judges. Among other things, of neither party in a case requests a jury trial, the matter will quite legitimately fall to a trial judge for determination. At some point, a judge will have to render a decision in a case where the law is truly ambiguous. And in such a case, the judge is the person with the authority to resolve such ambiguity.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.