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To: fluffdaddy

While your idea sounds reasonable in theory, in practice it seems flawed.

The Constitution protects the minority from the tyranny of the majority. The tyranny of the majority is represented in the elected executive and legislative branches. Only the judiciary, using the constitution, can protect the minority from the majority.

Now, in the end, the majority must be constrained by their HONOR of the judiciary, because the judiciary has no way of enforcing their own rules. They have no police, no army. They can only protect the minority by ruling for the minority, and hoping the executive will enforce those rulings.

Now, how can we control the judiciary? Well, you say only by ignoring them if they are wrong. The problem is that, once you advocate ignoring the judiciary, it becomes easier and easier to do so. You open a Pandora’s box where eventually the Judiciary is a superfluous voice, ignored at the whim of the majority.

We see how the democrats in the Senate have taken rules that worked for years because the Senate was populated by men of character, and ignored them when it suited their fancy, and how that made a mockery of our system.

The same could happen if we advocate ignoring the judiciary on a whim.

However, there are more circumspect ways the judiciary can be handled. For example, if the legislature doesn’t think the judiciary has interpreted a law correctly, the majorty can simply re-write the law making it more clear. In Mass., the courts even gave them 6 months to do so.

If the courts order an executive to jail someone he thinks shouldn’t be, he doesn’t have to ignore them, he can pardon the person. If a judge continually screw up, the legislature can impeach the judge.

If we can ignore the judges, why haven’t the pro-life states simply banned abortion? Why haven’t they simply refused to fund abortion? Is it because, as you say, the federal government can send troops into the state?

Which leads to the most interesting question. If Romney did ignore “the law as interpreted by the courts”, would not the litigants file in federal court? Would not the feds then rule for the courts, as they are want to do? If so, would he then have to listen, since the feds seemingly have absolute power over the states?

I’m actually more inclined to support the idea of a state ignoring the federal government when the feds violate the constitution, than having a governor ignore the courts simply because we think the courts ruled incorrectly.


216 posted on 07/10/2009 1:39:47 PM PDT by CharlesWayneCT
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To: CharlesWayneCT
You are concerned that “eventually the Judiciary is a superfluous voice, ignored at the whim of the majority.” But it always has been ignored at the whim of the majority, which is why it has, until very recently, been extremely cautious about crossing the elective branches of government— hence Korematsu v. US. If you are looking for a judiciary that is a strong bulwark against tyranny, you are on a fool's errand.

A lawless judiciary can't be constrained by writing clearer laws. The same acid that ate through one glass bottle will eat through another. The problem on display in MA was precisely that the judiciary doesn't feel constrained by the law, and no law can solve that problem. That problem has also been on display recently in the US Supreme Court cases having to do with detainees. When judges disconnect their reasoning from the law the only suitable response is for the executive to go its own way.

“If we can ignore the judges, why haven’t the pro-life states simply banned abortion? . . . Is it because, as you say, the federal government can send troops into the state?” Precisely. And because their own courts wouldn't assist them in prosecuting violators of any anti-abortion law because they would be loyal to federal precedent rather than to the executive authorities of the state. It would be interesting if some state would test federal resolve in this area and determine if the President would really send in the Marines to keep the abortion mills turning.

“If Romney did ignore “the law as interpreted by the courts”, would not the litigants file in federal court?” Of course, but they would have to present a federal question which means that they would have to argue that there is a federal constitutional right to enter into same sex marriages. That wouldn't fly just yet and I'm guessing it never will since I think that tide has already turned. But if the federal courts did find a right in the US constitution to same sex marriage and the President was willing to enforce that right, then all fifty governors would be in no position to resist. The Civil War and the Civil Rights Movement pretty much put that question to rest. I'm not propounding a theory here. I'm just describing how our constitutional order has to work if it is to work at all.

233 posted on 07/10/2009 6:05:50 PM PDT by fluffdaddy (Is anyone else missing Fred Thompson about now?)
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