Reply To Judge Richard A. Posner On The Inseparability Of Law And Morality
[79] Constitutional scholar, John Eidsmoe, outlined several precepts of the philosophy of relativism as applied to law:
(1) There are no objective, God-given standard of law, or if there are, they are irrelevant to the modern legal system.
(2) Since God is not the author of law, the author of law must be man; it is law simply because the highest human authority, the state, has said it is law and is able to back it up.
(3) Since man and society evolve, law must evolve as well.
(4) Judges, through their decisions, guide the evolution of law.
(5) To study law, get at the original sources of law- the decisions of judges; hence most law schools today use the "case law" method of teaching law. 117
…Justice Holmes, writing for the majority in, Trop v. Dulles, held that, "[ the Constitution] must draw it's meaning from the evolving standard of decency that mark the progress of a maturing society." 120 Likewise, Cardozo, a no less equally revered jurist as Holmes, stated in his book, The Nature of the Judicial Process, that, "I take judge-made law as one of the existing realities of life." 121 Dornan and Vedlik, in a similar vein said, [the Court has] "liberated itself from what the Declaration of Independence called "the Laws of Nature and of Nature's God." 122 Finally, it was Chief Justice Charles Evan Hughes who boldly exclaimed that-" The Constitution is what the judges say it is." 123
…The judge, in deciding a case, looks to the end he wishes to achieve or his "gut feeling" and crafts the necessary means via application of a "Rule of law" to rationalize such a conclusion. 124 Another precept of realism follows a reasoning-as-rationalization approach to the law is rule-skepticism which holds that "the law . . . consists of decisions, not of rules." 125 Thus, realists have concluded that since judges' decisions are the law, the Common Law doctrine of stare decisis (i. e., precedent) is no longer relevant in modern judicial decisionmaking. 126 To the realist, the law was too much in a state of flux and indeterminacy for stare decisis to apply. Also, realists questioned the rationale of binding a judges opinion in one case to a decision in another case decided many years before, because the judge in the latter case could always find some "distinguishing" fact from the earlier to justify having a different result since no two cases are exactly alike.
The Inseparability Of Law And Morality, The Constitution, Natural Law And The Rule Of Law
Judicial Monopoly Over the Constitution:Jefferson's View The President can refuse to enforce court orders he believes in conflict with the Constitution. (The courts have no enforcement machinery, i. e., prosecuting attorneys, police, armies, prisons, or electric chairs, of their own.) As Andrew Jackson is alleged to have said, "John Marshall has made his decision; now let him enforce it."
Congress, the Court, and the Constitution(first excerpt) why must the Court rather than the Congress be the states' defender?
Congress, the Court, and the Constitution (2nd & 3rd excerpt) If one has trouble imagining judicial review so confined in its scope, it is probably because the modern American mind, conditioned by at least a half-century of judicial supremacy, can hardly help but regard the judicial branch as a co-equal partner in the public policy making process. But it was doubtless to prevent such participation by judges in policy-making that the Founders circumscribed the jurisdiction and power of courts so narrowly in the first place.
How Not To Overturn Roe v. Wade The unstated premise of those who have adopted this strategy is that the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken.
Constitutional Persons:An Exchange on Abortion ...Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, Roe is impervious to logical or historical argument; it is what some people, including a majority of the Justices, want, and that is that.
Lincoln on Judicial Despotism I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
STENBERG v. CARHART :Justice Scalia, dissenting. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.