Posted on 06/08/2009 1:39:12 PM PDT by StilettoRaksha
The growing dispute between conservatives and liberals over the Supreme Court nomination of Sonia Sotomayor obscures a more troubling point of agreement: The government should almost always win.
Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.
The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism.
It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.
The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution's framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.
(Excerpt) Read more at online.wsj.com ...
Read our lips: Yes, it is.
There is no coequal branches of government.
The Legislative branch can impeach members of the other two branches. The Executive branch may dissolve and establish the Courts. Only the people can change Congress. The courts may NOT remove a President or any member of Congress! The branches are described in the constitution in the order of their power.
1 Legislative
2 Executive
3 Judicial
The idea that the 3 branches are coequal is a myth the demoncrats have propagated.
Get your facts straight. It’s the legislative branch that can create and dissolve lower federal courts.
The dominant debate is “Strict Construction” vs an “evolving” Constitution.
In “strict construction” the court sides with the Constitution.
In “evolving” the court sides with changes in the culture that the court thinks require changes in the constitution.
For example, a court decision on abortion that pivots on the “viability” of a fetus inherently pivots on the available technology. Many fetus viable today were not viable in the 1970s. A fetus viable in the USA is not vialbe in Haiti.
That “social issues” dominate the discussion is a popular/populist way to communicate the divisioin of strct construction vs evolvig. Of course, lost in the popular discussion is much of the logic behind it.
I agree.
WSJ,
The judicial branch judges cases based on the law. It is never allowed to create law. The legislative branch creates law.
And they are SUPPOSED to judge the LAW based on the clear words of the CONSTITUTION. Were they to do that, well over 90 percent of “laws” passed would fail Constitutional muster. Most based solely on the Tenth Amendment, but also Second Amendment grounds and MANY other grounds. The editorial has it right insofar as what I have read on this thread. The courts give too much credence to the legislature with respect to the unconstitutional crap they pass and to the executive with respect to the crappy EOs the presidents put out.
I stand corrected. Trusted information about FDR’s attempt to pack the SCOTUS. Thanks for correcting my error.
Not just the branches, but federalism is at issue here, as well.
The Constitution is a contract between the states and the entity formed from that contract.
Who in their right mind would allow the formed entity to have final say in interpreting the contract between itself and the forming entities?
Leftists fully recognize that “originalism” favors conservative ideology.
That is why they reject it and attempt to invalidate the whole concept, because they simply can’t get their way with an originalist view of the Constitution.
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