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To: Rockingham
Scalia is unwilling to reverse case law decisions that have been settled for seventy five years or a century and incorporated into the fabric of American law and life.

He's willing to when it suits him, not willing to when it doesn't. But forget Scalia. The larger point you make is one that supports my thesis. The Court's application of stare decisis (nowhere to be found in the Constitution itself) makes their decision all the more damaging, as the antifederalists pointed out at the time. Precedent upon precedent, etc.

That is why I argue that the problem is structural--the Federal Judiciary is too powerful, extends over too large a jurisdiction,and is unaccountable. In short, Article 3 was a mistake.

65 posted on 10/16/2009 10:16:06 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
That is why I argue that the problem is structural--the Federal Judiciary is too powerful

"What is this power? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." --Gibbons v. Ogden, 22 U.S. 1 (1824)
You're arguing that the "Federal Judiciary is too powerful" while simultaneously demanding that it usurp powers explicitly delegated to Congress. You're also implicitly calling for the Court to operate without the limitations on its appellate jurisdiction set out in the Constitution.
71 posted on 10/16/2009 10:29:42 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Huck

The federal judiciary has accrued power because the federal government has accrued power. Do not think that the edge of the sword operates apart from the bulk of the sword and the arm and mind that wields it.


113 posted on 10/16/2009 11:44:22 AM PDT by Rockingham
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