Posted on 05/20/2007 5:26:04 AM PDT by Alas Babylon!
In this article, I address the most common (and most influential) justification for originalism: popular sovereignty and the judicially enforced will of the people. Popular sovereignty both reflects and builds upon the normative theory of democratic rule - government by the majoritarian consent of the governed. The costs of judicial error under this approach waxes and wanes depending on the degree of departure from the people's will and the constraints placed on the ability of political majorities to respond to the court's error. The greater the intrusion into the democratic process, the greater the costs of judicial error and, accordingly, the greater the need for “weightier” pragmatic arguments if precedent is to control. Judicial errors that leave an issue under the control of political majorities generally impose such low costs in terms of constitutional legitimacy that the pragmatic considerations of stare decisis may come to the fore. On the other hand, judicial errors that completely remove a matter from majoritarian politics impose such high costs in terms of constitutional legitimacy that they ought to be treated as presumptively in need of overturning - a presumption I refer to as reverse stare decisis.Popular Sovereignty. That's one alternative -- there are, in American Legal history, others. President Andrew Jackson had a veiw that made the Executive at least co-equal with the Supreme Court:Allowing majoritarian politics to play a role in determining the strength of prior precedent is not a new idea: it was first suggested by James Madison, one of the authors of the Constitution and a committed popular sovereigntist.
Originalism, Popular Sovereignty and Reverse State Decisis
KURT T. LASH, Loyola Law School Los Angeles, Loyola-LA Legal Studies Paper No. 2007-16, Virginia Law Review, 2007
Between 1790 and 1871, the U.S. Senate ratified 380 treaties with Indian nations. Congress entered into treaties with the [nations] to acquire land which it would sell to pay off its huge debts. Start-up costs for a nation, even back then were staggering and the U.S. was too weak to take the land by force. What it had to offer the [Indian nations], in return, were sovereignty and peace.(btw -- I'd have more to say in re Jackson and the Cherokees, the war on terror, and on title, if anyone wants to hear, but it's not relevant to the question of who decides what is Constitutional.)When the legal concept of sovereignty was first challenged in the Supreme Court by the state of Georgia in the 1820s, Chief Justice John Marshall took pains to examine this legal apparatus and to explain how it functions. He knew battles with the [Indian nations] would only escalate over time.
This brace of cases, known as the Marshall Trilogy, held that every treaty ratified by the U.S. Senate under Article VI, Clause 2 of the Constitution, was now the "supreme law of the land." Sovereignty, explained Marshall, exists as a pre-condition among self-governing entities and acts as a legal shield protecting all rights and privileges reserved and implied by nationhood. In fact, treaties were the granting of rights from the [Indian nations] to the federal government.
President Andrew Jackson was so infuriated by Marshall's opinion that he declared: "Let him enforce it!" then sent thousands of Cherokee ... [westward. bvw: cutting out the most egregious PC tripe]
Cite for above left out, sorry. It is an American Indian website: http://www.canku-luta.org/fall00/indian_sovereignty.html
It was only ‘dumb’ to waste my time assuming
you were a civilized person.
“Talk is based upon the assumption that you can
get somewhere if you keep putting one word after another.”
- Iblis Ginjo
Marshall's SC used their powers as granted by the Constituion and determined what they thought was Constitutional.
President Jackson then used his powers as granted in the Constitution and took care of the enforcement...or lack there of.
Madison doesn't contradict anything that I said.
You post was a lie. Civilized people don't lie.
Thank you tarheelswamprat!!!
The concept extended to the War on Terror has already resulted in thousands of casualties. A terror organization like Hamas can have no sovereignty when the people under it -- in as much as the "Palestinians" may be considered under a government, for they do not behave so -- do not take on the character of a lawful nation respecting property, person and title.
And without those characteristics of a nation, there is no sovereignty except by shear force of arms and despotic rule.
Without knowing the lumber company's competition, how does this have meaning? If the lumber company's competition is another nation that doesn't have those regulations, then the alternative is to go out of business. To "balance" this monster, wages and benefits offered by all must be the same, which would ultimately require international oversight of wage regulation. Great. Just great.
MR. RUSSERT: Let me go back to Iraq and give each of you a chance, in the closing minutes.
Speaker Gingrich, if we set a firm date for withdrawal of U.S. troops in Iraq, what happens?
MR. GINGRICH: I believe we send a signal to enemies to wait patiently and destroy the country as soon as we leave. I believe we send a signal to our own troops to cease patrolling and do everything you can not to be the last person killed on behalf of something that Congress has decried will be a defeat. I think we send a signal to our allies around the world that we’re unreliable. And I think that we have dramatically expanded the excitement and incentives of the terrorists, both in the Iranian-funded Shia wing and in the Saudi-funded Sunni wing of al-Qaeda. And I think you’ll see a dramatic upsurge. And a simple way to measure this, watch what our enemies say. If this Congress passes a definitive end of American involvement, every enemy we have on the planet will exalt, and every terrorist group on the planet will claim it’s an enormous victory, and they will increase their recruiting. And as New Jersey should just have taught us, they don’t plan to stop in Baghdad. They are coming here as soon as they can get here.
MR. RUSSERT: Can you respond to that?
SEN. DODD: Yeah, I—in fact, I think just the opposite. I think the very things you’re talking about, you have the opposite reaction here. I think the world is waiting for the United States to lead again with bold leadership in the country. It’s deeply worried about security, deeply worried about global terrorism, and looks on—over this landscape of the world, says only one country can lead, it’s the United States. The Chinese aren’t going to do it, the Russians aren’t going to do it, the Indians aren’t going to do it, not in the foreseeable future. It’s going to be the United States.
We’re bogged down in a situation here where we’re losing credibility, we’re losing our moral value. The great moral reputation of the United States has suffered terribly as a result of this. That’s a critical element and was critical in building the relationships that allowed us to develop the kind of international cooperation absolutely essential if you’re going to deal with global terrorism. So my view is here, it’s time for us to say that there’s a new mission here, a new direction, a change in course here that will allow, I think, the possibility of Iraqis to decide they want to be a country. Allow us to encourage the moderate Arab states in the region to assume greater responsibility for their neighborhood than they presently are. I think the real opportunity, if you engage not as a—not as an end, but as a means to deal with the Iranian-Syrian issue, as we finally did in North Korea, you open up the, the perspective here—the prospects, rather, of a wider, better set of alternatives for the United States and our allies around the world. That, at least, is a real opportunity. The status quo and escalating this conflict in Iraq on the assumption there’s a military solution, I think has been disproven and discredited by most major people who’ve looked at this, and I think they’re right.
Thank you.
It has always been my belief that mountain folk have the greatest common sense of all peoples!
Okay. That makes sense. A freeper posted somewhere ages ago something to the effect that "It sucks to be from a Spanish colonial nation." Sad corruption.
I wonder why it wasn't like this in California even 25, 30 years ago. Mexico and cheap labor and illegal immigrants have been here all along and a heckuva lot longer. To me, it seems so clearly obvious that any serious attempt to deport them would result in disaster in part because of that fact. What's changed has been the Federal government's increasingly heavy hand in regulating wages and other business-employee matters, and government largess such that encourages illegal immigrant anchor babies and welfare lifestyles.
As for Mexico's government, I agree, but I don't live there or vote there so I don't have much to say about it. I've been to Mexico enough to know that it's a third-world country. I've been in California long enough to know that Mexicans are most of the time fantastic family people with a great work ethic, and that if I had my choice to work in a low-wage job beside a good co-worker who was an illegal Mexican, or a series of crappy co-workers who were legal, I'd choose the illegal one.
I disagree with the President's policy on illegal immigration. I also disagree with voters who voted against incumbent candidates who stood up against the President and his policy on illegal immigration. We lost 20 good anti-illegal alien incumbents in the House.
I blame the President for his policy. I blame any voter who voted against good anti illegal alien candidates.
Wouldn't you agree?
Thanks for the transcrip, NonLinear.
Have you ever heard anything more babbling than Dodd’s comments or more clear than Newt’s.
There will be no Perot this time, but there might be a certain billionaire governor, Bloomberg.
Most people seem to feel he would take more votes from dems than from pubs, but who the heck knows.
Most certainly, I agree. I supported Jim Talent whole heartedly was a republican poll worker. He won big time in our republican polling station. I was a judge. But he lost in the cities and I believe with many, many voters (not really republican voters but just middle of the road types) who abhorred the conduct of the war and the unfathomable position of the president regarding illegal aliens.
Did I see you in Wal-Mart wearing the “Don’t blame me, I voted for Perot” t-shirt?
Only kidding, but I did see someone wearing one and wanted to scream, oh, yeah I blame you all right.
But you learned and well. So many did not.
“Here in Texas, the dims in the state house are working to kill a voter ID bill. I wonder why?”
I’ve been wondering (and annoyed) about that also.
It seems like such a simple and practical idea. One has to show ID in so many trivial situations, why not in the important one...to vote?
No, I haven’t.
That was just the wrap-up, but the juxtaposition of ideas in contrast could not have been more clear.
Dodd’s thoughts are absurd!
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