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To: jwalsh07
Fundamental rights (can) should not be abridged by either the state or the feds. We undoubtedly agree there.

Fundamental rights should certainly not be abridged by any government bodies. That is axiomatic. The questions are: what are the fundamental rights, how do we ensure they are protected, and by whom?

If a city government violates the rights of its residents (or non residents) by confiscating their land without process or compensation it is natural for the aggrieved party to go to a higher authority, such as a county or state prosecutor, for redress. Likewise, if a state violates a right through its laws, redress may have to come from a higher authority.

The problem with incorporation is that it never ends. The SCOTUS never contracts precedent, it always expands on it. The inevitable result is culture wars among the citizenry because the losing side in whatever case is being heard feels as if they and their elected legislators have been shut out of the debate.

"Precedent" is the judicial equivalent of the constitutional "original intent." It asumes that each decision of the court is valid and binding until specifically overturned, the equivalent of amending the body of interpretation. It is good and right that the SCOTUS respect its own precedents, even as all other courts in the land must respect them. But it is wrong to say they are never overturned. Many opinions decsions have been overturned or altered. Gitlow overturned Prudential, for example.

No one is shut out of the debate. Even the losing side gets to say its piece. The fact that we are having this discussion here and now is clear that constitutional issues are open for discussion.

There are fundamental rights and then there is liberty. One is granted by the Creator and guaranteed by the Constitution of the US. The other is a matter best left to the states, the citizens of those states are most enable to define the limits and extent of liberty.

I would number liberty as among the fundamental rights. Along with the other rights it is the duty of every level of government to respect and protect liberty. Should the definition of "freedom of speech" be different in New Hampshire from the definition in Vermont? I would say that to a slight extent it is legitimate for different areas to have somewhat different definitions. But there should be a base level of rights which are guaranteed to all citizens of the U.S. I believe, and I think the SCOTUS also believes, that the BOR (minus amendments 3, 7, 9, and 10) applies to all citizens and restricts all bodies of government.

Not 9 isolated judges who go to work in their bathrobes.

Who should interpret the U.S. Constitution? Nine officers in uniform? One elected official? The 525 members of Congress? Somebody has to do it, there has to be some mechanism for ensuring that lower courts apply laws in a consistent manner and that legislatures and other governmental agents do not act unconstitutionally. The consensus of the republic for two hundred years now is that SCOTUS is the correct body to perform this necessary action.

507 posted on 11/13/2003 2:37:23 PM PST by Looking for Diogenes
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To: Looking for Diogenes
You embrace judicial activism, I don't. It's really quite simple.
508 posted on 11/13/2003 3:16:49 PM PST by jwalsh07
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