Posted on 02/09/2005 7:22:26 AM PST by ZGuy
Who knows what to do about it?
Re: “…an Imperial Presidency is much worse than Judicial Supremacy. Both are bad government. But monarchy always becomes violent dictatorial tyranny.”
Excuse me but I have a little problem with this. I can think of no monarchy that is guilty of assisting in the murder of 40-50 million children, even the worse of monarchies i.e. Middle Eastern kingdoms. No for true efficiency in the wholesale destruction of their citizens you need a government that “claims” legitimacy from the “people” As Lenin did, Hitler, Mao, Pol Pot and yes I hate to say it even our own government. 40-50 million babies willfully murdered, all possible due to the Courts rulings, Congressional funding and Presidential indifference. This crime is to be laid at the feet of both parties and all branches of government.
Just cut the courts budget, force staff reductions and a wage freeze and they will get in line. There will be no problem with an Imperial Presidency or Congressional oligarchy.
The Abortion issue specifically should have been resolved by direct reference to the words of the Constitution: "No person shall be deprived of life . . . . without due process of law."
The court did not consider either the law or the factual issue of when personhood commences--had it done so, the result in Roe v. Wade would have been different. And that legal and factual controversy should resolve that narrow question at some specific point in the future.
It is not even necessary to overrule Roe; the facts of the next controversy will be different that those presented in Roe because there will be evidence that the unborn child is a "person" within the meaning of the Constitution.
As to the rest of this nonsense, it is simply rehetoric. The real cause of the constitutional problem is that there is a lag time between the assumption of legislative and executive power by Constitutional Republic political forces and use of that power to implement change in the political direction of the Judiciary.
At present, we are still laboring under the constraint of 62 years of Liberal political power and its use to transform the Judiciary. And transformation of the Judiciary by the legislative and executive branch during the ending years of Liberal management was fairly focused. So it will take us a while to reverse the course of things.
And there is a further problem. The Law education process, like the rest of the education industry, is controlled by liberals who are producing more than a reasonable share of liberal lawyers. The law school from which I graduated, which has dropped from #14 to #76 in some public ratings, is a case in point.
The great commercial, contract, and business law professors who were there when I attended have all been replaced by liberals who are teaching rights of the poor and underprivledged rather than the law. Well and good. The reason their ranking has dropped is because the school can no longer get its graduates decent law practice employment. So maybe that process is self policing also.
At the end of the day, a remedy that essentially repealed the common law legal system by removing resort to precident would probably prove worse than the current political crisis--it isn't going to happen either.
2. The power has been understood and used by all commercial & manufacturing Nations as embracing the object of encouraging manufactures. It is believed that not a single exception can be named.
James Madison to Joseph C. Cabell 18 Sept. 1828Writings 9:316--40
Yes. In fact until we stop have a knee-jerk postive reaction every time we hear the word "democracy", and a knee-jerk negative reaction every time we hear "monarchy", the nanny state, Wilsonian imperialism, and supremacy of the courts will be with us.
The rule of precedent has the virtue of making law somewhat predictable. Repealing it will lead to endless lawmaking and therefore even faster growth of government.
How do you avoid the problem of drifting farther and farther away from the Constitutional basis for laws? Unless there is at least some occasional recurrance to original intent, you can easily end up piling error upon error, which is what we seem to have as a result of each new precedent expanding on the last.
The "drifting away from the Constituition" happens because of centralization of politics in Washington. Soon the dogcatchers will be operating on the federal level, and the courts will be tasked to find the jurisprudence of dogcatching in the constitutional penumbras.
The Constitution speaks to the operation of the federal government circa 1800. It is silent on the issues of Social Security, school busing, abortion, school prayer, etc. -- but we want these issues be decided politically and from Washington, so the Supreme Court gets the impossible task to adjudicate what cannot be adjudicated. It is like teaching chemistry out of a textbook on Newton mechanics. We don't have drifting away, we have a ritual of doing constitutional incantations over unrelated subjects.
The crisis of government has to do with overuse of democracy, not with government mechanics.
The precedents can be overruled. No change in the system is required to overrule an obviously injust precedent. Since the Constitution is silent on most issues the courts are told to apply it, removal of the precedent rule would simply destabilize the process to the point of endless thrashing between extremes.
From George Washington's Farewell Address:
"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield. "
FDR did not "use the bully pulpit... to support an amendment" concerning membership in the Court. No amendment was necessary. The Constitution does not specify the number of Justices, and it has been as low as seven and as high as eleven.
This paper states that President Bush took us to war in Iraq without "a declaration of war." To the contrary, Congress has twice declared war, using almost identical language as it did when authorizing President Jefferson to conduct war against the Barbary Pirates.
Concerning the overall constitutional problems facing the nation, the article is generally correct, but far too complicated. The balance is off between the Court and the other two federal branches. The balance is also off between the federal government and the states.
The first problem can be solved by a combination of congressional withdrawals of court jurisdiction. The second problem, however, does require one or more constitutional amendments. Some of those are already in the hopper, but are far removed from active consideration, as yet.
Congressman Billybob
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Agreed. What he is calling "strict constructionism" appears to be "strict textualism".
...for my class reading. Thanks!
bump
A common law system like ours tends, overtime, to converge on the "right" answer.
One can always point out particular judicial holdings that seem irrational or unjust but, in my opinion, the law generally corrects itself and yields the desired outcome.
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