Well, I would say that such a finding would be in direct contradiction of other sections of the constitution which specifically acknowledged the legality of slavery. So, yes, I would oppose such a ruling and go for an amendment.
Your argument reminds me of the argument being made that the court should outlaw capital punishment – again referred to specifically in the constitution – using the excuse that it is “cruel and unusual.” Such an act by the court would be an exercise of raw judicial power and, in my view totally wrong.
The issue is a very basic one. Is the Supreme Court’s role to insure that the legislature and the executive adhere to the written constitution, or is its role to act as a permanent constitutional convention … changing the constitution from time to time without the necessity of a formal amending process? That is a very, VERY large power and one that I, for one am not comfortable giving to 9 un-elected people in black robes who hold office for life.
To use a football analogy, the role of the referees is to call fouls and judge the position of the ball. Once we give them the right to move the goal posts, we don’t have a “fair” game any more. In fact, we don’t know what game we are playing.
”My point is just to note that when there is a dispute between the government and me that will be decided by the courts, the courts are the government. You noted that I might argue that (and I do), but I do not do so because the concept of contract falls apart only if the courts misapply their authority. I argue that because of the inherent inequity in having all power vested on one side. It is the possibility of abuse that grates against traditional notions of arms-length contract law. If all power is on one side, whether or not it is fairly exercised, would not such a contract be unconscionable?”
I’m not sure I understand your argument here. Let me try again to show you the reason the constitution is a contract between the people and its government.
First we had a constitutional convention in Philadelphia where the terms of the contract were drawn up. It decided how the government was going to organize itself, what its powers were and how it related to the states and the people. It made provisions for changes in the agreement and for changes in the government based on the votes of the people. Thus the contract was written.
It was then submitted to the people for ratification. The people signed on and only after that were the constitutional “contract” provisions put in force.
But, you say, the government has all the power. I reply: no, not in a constitutional republic like ours. We can, via the ballot box change part of the government (executive and legislative). See, it’s right there in the contract in article 1, 2 and various amendments. In that respect, the people hold more power than the government. The only thing we cannot directly change is the court. It is the court that has the traditional role of insuring that the state follows the constitution. It is the court’s traditional role to insure that the state cannot do anything to its citizens that is not allowed by the constitution. It is definitely not the role of the Supreme Court to decide when a society’s mores change and, with the stroke of a pen, create new law based on their personal preferences or, in Crazy Ruth’s case, find American law in European law.
Regarding relative powers, as long as we live in a representative republic with a free press and the right to assemble and petition for redress of grievances, we will never be powerless against the state.
Finally, if you feel powerless against the state, the only logical conclusion that I would draw is that you prefer the absence of the state. However, it is the state that protects most people from the raw rules of nature “red of tooth and claw” where life is “nasty, brutish and short.”
The best to you and your family; keep those meds coming and it’s been nice chatting with you.