The Supreme Court's fear

Washington Times ^ | October 2, 2001 | Philip Gold

[tberry]

Many years ago, I took an undergraduate course on the Supreme Court. Reading several dozen decisions convinced me of two things. First, I had zero aptitude for the law

[tberry]

"world war and Cold War, proving that, in government, there's nothing quite so permanent as the temporary."

Beware all of those "temporary" restrictions on our liberty. Once they are instituted they will not go away.

[tenderstone jr.]

Scalia and Thomas are definitely not afraid, and have no problem saying decisions like Roe v. Wade were wrong. I think the author is describing perfectly O'Connor and Kennedy, who both know the court has made mistakes in the past, but who are both unwilling to correct them because of the potential backlash.

[Maelstrom]

Told ya' so.

[justshutupandtakeit]

Interesting to see that one who admits no ability in or understanding of legal reasoning feels someone should care about his blovating on such significant legal issues.

Of course, he will find a ready audience here among those similiarly gifted.

[Brian Allen]

Thank you. A keeper.

[AKbear]

The Constitution is not a difficult document to read. It's set out in fairly plain language, and was done so on purpose. It does not take a legal scholar to understand what is constitutional and what is not.

The problem is, congress, filled mostly with lawyers, obfuscate the law to the point where the ordinary citizen can't understand what is being passed. Then it takes a legal scholar to interpret what is written. It's mainly job security.

Mr. Gold is correct. And it doesn't take a legal scholar to see that.

[AKbear]

Good article. Bump!

[Blood of Tyrants]

Most are terribly afraid of having to rely on the Constitution for guidance rather than some previous incorrect ruling, i.e. the non-existant "seperation of church and state".

[Eva]

I have a slightly different view of the power struggle between the Congress and the courts. I think that there is no struggle. The legislators have willing ceded their power to make clear laws to the courts, because our congressmen do not trust the public to know what is best for them. They fear a political backlash if they support a politically controversial stand. So, they allow the courts to legislate from the bench, to attempt to determine the intent of the law, which should have been made clear in the first place, or be rewritten.

[justshutupandtakeit]

While I realize that this is the claim of the non-expert, it is false. Like all deep political philosophy (or great literature) the constitution requires great thought to understand all its ramifications. This is why Hamilton had to write the Federalist in order to explain and educate the population as to its meaning. This is why John Marshall had to explicate its meaning over a thirty year period.

Like the Bible it provides an outline which is often not at all obvious as to how it applies to a specific case. Thus, millions of pages have been written explaining and amplifying the meanings of the Bible and perhaps that many doing the same for the constitution.

Since the population was not as educated then as it is today the likelihood of the majority of the people understanding it is not great. Mythology to the contrary. Even Jefferson appeared not to understand it and he was a lawyer.

Most of those claiming the great simplicity of this phenomenal document cannot carry a legal analysis past a couple of sentences and those with whom I have had contact do not know what the hell they are talking about. They understand little of what the document actually says and nothing of its implications. Generally their arguments are limited to declaring something unconstitutional because they feel that it should be so and blaming all complications on lawyers. Similiar to blaming sickness on the doctors.

[eskimo]

Interesting to see that one who admits no ability in or understanding of legal reasoning feels someone should care about his blovating on such significant legal issues.

What you call "legal reasoning" has, of late, become blatantly unreasonable. Today, almost no one’s life remains untouched by some egregious misinterpretation of the written words of law. To many present-day observers, “legal reasoning “ has become a précis from which any creative interpretation of words can be used to reconstruct law.

Of course, he will find a ready audience here among those similiarly gifted.

Perhaps the "gift" you scorn is simply the ability of rational people to make a measured observation.

[AKbear]

I disagree. The Constitution is very easily understood. It was written in plain language and is very straightforward on what the government is allowed to do. It's when some legislator decides to try to pass it by the people that the meanings get obfuscated. They try to stretch the meaning of the interstate commerce clause to the breaking point. Or they try to mealy mouth the 2nd Amendment to mean a collective right, or the claim the general welfare clause (which is not a clause that means anything other than a general introduction to the powers of congress) to mean free money, food, education, medical care, etc.

Since the population was not as educated then as it is today...

Here I have to disagree as well. People knew grammer and what sentence structure meant and how it was used to delineate an introduction clause from the specifics, or that the first part of the 2nd Amendment was not a limiting clause. It seems that just in the last century that people were dumbed down to the point where those things started to mean nothing to the people.

It does not take a scholar to understand the Constitution. It was written for the people to understand. If it had been hard to understand, it would have been even harder to ratify than it was.

[justshutupandtakeit]

I would love to see this astute reasoning you describe but the love of crackpot theories and lunatic fringe legal scholarship and political theory seems to have driven most of it away from here.

Now if we could just get these "experts" to turn their attention to medicine and self treatment based on their "expertise" viola problem solved.

[justshutupandtakeit]

The majority of people outside the cities in our early day could neither read nor write. The New England states were an exception perhaps. As far as the illiterate being able to understand the constitution goes- well, it is a nice sweet myth. You can believe if you like but it is totally false. Only after the spread of public education was literacy widespread.

[max61]

Whether the masses were literate or not was irrelavent as to the understanding of the law at that time in history. Whether a "reasonable man" could understand the meaning of the law as written is what mattered, intent had no standing as intent is what was codified when written. The Constitution's meaning is extremely clear in all respects. It takes "experts" to obfuscate new interpretations into it, and that is why we are where we are.

---max

[A.J.Armitage]

. Like all deep political philosophy (or great literature) the constitution requires great thought to understand all its ramifications.

Back on your "deep study" fixed idea, I see.

I've got to hand it to you, you managed to make a decent analogy. I like the comparison to great literature. I don't claim to be an expert on literature, but that doesn't stop me from understanding, say, Macbeth or some other play by Shakespeare. If you told me that Coriolanus was able to control his temper and wanted to give more political power to averege Romans, I'd know you were wrong. You would still be wrong if you had credentials, and I would still know it, not because I'm an expert, but because I read the play. Sure, some thing are deep and obscure and subtle, but some things are obvious.

This is why Hamilton had to write the Federalist in order to explain and educate the population as to its meaning.

To the contrary, Hamilton and Madison(don't you hate that?) wrote it to persuade people to support it. Of course, that involved going over it and the arguments for it in detail, but it wasn't as if everyone was so stupid they couldn't read it for themselves.

Even Jefferson appeared not to understand it and he was a lawyer.

I'll note that you also think Jefferson was a traitor.

Most of those claiming the great simplicity of this phenomenal document cannot carry a legal analysis past a couple of sentences

Sometimes you don't need to. I've found that asking where the Constitution authorizes something is usually enough. Half the time they bring up the "general welfare clause".

[eskimo]

Now if we could just get these "experts" to turn their attention to medicine and self treatment based on their "expertise" viola problem solved.

You seem to consider rational people making measured observations to be an overt encroachment into some realm where only the omniscient priests of "law" may venture.

I have heard many a bellicose barrister expound that the “law” is necessarily incomprehensible by common folk but none that I asked would tell me to what end that it so.

[supercat]

I have heard many a bellicose barrister expound that the “law” is necessarily incomprehensible by common folk but none that I asked would tell me to what end that it so.

If a law is so confusing that nobody understands it but people fear going afoul of it, the interpretation most people obey will be far stricter than anything that could otherwise be enforced.

[supercat]

Sure, some thing are deep and obscure and subtle, but some things are obvious.

There should be a requirement that the foundation of all appellate court decisions be the law (in all its forms, including the Constitution). Other court decisions may be cited as well, to help clarify places the law may be ambiguous, but the law must be the backbone of every appellate court decision.