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To: z9z99

You go through a lot of convoluted "methods" and "practices" as a sloppy means to fix the essential problem, which, you half-heartedly admit is that judges, and particularly Surpeme Court judges in matters relating to the meaning of the constitution do not uphold the meaning of the constitution, as it is given to them.

We can, and we will provide the means to, make them adhere to the "orginal intent", through legislation and/or constitutional amendment. Which is the type of actions any of your suggestion would require. So why beat around the bush, with a bunch of minor changes that simply let later judges throw out the dictates of earlier judges and replace them with new dictates of their own. It does not solve the essential problem, which is not procedural but conceptual. Set the concept into the law/constitution.

And no, let's not have a "living constitution", if by that you mean judges write a new constitution through their own dictates with each ruling. It is incompatible with the democratic basis of a constitution in a democratic republic.

In my opinion your points are well taken, but tangential to the issue.


7 posted on 04/13/2005 6:25:11 AM PDT by Wuli (The democratic basis of the constitution is "we the people" not "we the court".)
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To: Wuli

We now seem to be sliding into that conversational chasm of talking past one another. Perhaps we should be more precise about our arguments.

I don't think that my proposals are sloppy at all. I think they give due deference to the law of unintended consequences and recognize the reality of the justice system, not only in the United States but everywhere, not just now but always. I don't think you can limit the function (abuses in this case) of the courts without limiting the methods. We need to limit the damage done by mavericks on the Supreme Court (and there will always be mavericks. Remember how John Sunnunu promised Bush 41 that there was no "closet liberal" aspect to Souter?) by limiting the influence bad decisions have on the lower courts. Stare Decisis is an artificial construction. Toss it.

Perhaps we need to define a "living constitution." I think a living constitution is O.K. if it lives through the amendment process and not the interpretation process. "We the People" should have our input into bringing application of founding principles into conformity with modern realities.

You and I do not seem to be connecting on a fundamental point. I see the problem as one that emanates from the Supreme Court but is odious at the level of the inferior courts. You seem to suggest that we can somehow get the Supreme Court justices to shape up. (Can you propose some constitutional language to do so?)

I suspect that your main objection to my thoughts is that they do not go far enough for your tastes; that you'd like to clear the field and have the Supreme Court start afresh with a renewed integrity intended by the founders. I'd like to also; I just don't think it's possible.


8 posted on 04/13/2005 6:55:28 PM PDT by z9z99
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