6/19 Re: "strict constructionist" below. I can't see how anyone would want
a SCOTUS judge to not be strict constructionist. If they follow the
document then we don't get wonky rulings like the expansion of eminent
domain and the excuse of interstate commerce to trample on states'
rights. Furthermore, it means we the people change the consitution
through elected officials (many of them have to act together) rather
than 9 or so appointed judges. So, if you disagree with the strict
constructionist philosophy, please argue your case. I really don't see
the other side of it and I'd like to change that. -emarkp
\- "strict constructionist" or "fundamental fairness" and other such
terms are can get universal agreement but they mean different
things to different people. to take a geek turn, two people can
think 'object oriented programming' is good and mean different
things by it. a judicial philosophy is more than two words long ...
and isnt even a list of "two words phrases" ... "i believe in
'original intent' and 'strict constructionism' and 'stare decisis'
and the 'plain meaning' of the constitution."
see e.g. Cardozo: Nature of the Judicial Process.
\_ Let me preface my comments by saying that Justices ought to
primarily interpret the law not create it. However, in some
cases they need to be flexible enough to mold the law into a
particular direction that is favorable for society as a whole.
\_ I see this as a problem. Who decides what's faborable for
society as a whole? Society should. And we should do it through
constitutional amendments if necessary, or by state and federal
legislature if not. -emarkp
\_ The judiciary has a role in molding the development
of society as much as the legislature does. Often
judges are asked to interpret laws for situations
that were not envisioned by the the people who framed
the law. Instead of automatically deferring to the
legislature (when/if they get around to dealing w/
the issues instead of bonking their interns or taking
bribes), it would be preferable for judges to suggest a
manner in which the law should develop. If the judicary
makes a mistake, the legislature can always fix it via
statutory enactment or constitutional amendment.
\_ Here's where we disagree then. I see SCOTUS as having a
very narrow purpose, and that's making sure laws passed by
congress don't violate the constitution. Of the three
branches of gov't, the congress should be the strongest and
the judges (not elected, not removable) the weakest.
-emarkp
\_ Okay. If you view the congress has having the
strongest role and the judiciary as having a
merely passive role, I can agree that you want
\_ I don't see 9 people striking down
legislation approved by 536 people as
"passive". -emarkp
\_ Is there a particular act you are
talking about, or are you speaking
in general? I find it hard to
believe that anyone can think that
the vast majority of legislation
has unanimous approval of the
house and senate (or that it
reflects the views of more than
perhaps a mere majority of the
voters - and if it is a mere
majority then the cts must serve
as a check on the tendency of
to resort to mob rule)
\_ Not any particular act. Just the
congress + president as a whole in
principle. I guess another way to look
at it is that 337 people can pass an
act (2/3 of house and senate to
override a veto), but 5 people could
smack it down (SCOTUS majority).
-emarkp
\_ Personally I feel safer that
there are at least 5 people
in the country who can smack
down the BS that comes out
of congress. Without a strong
and independent judiciary
to keep a check on congress
we would quickly descend
into mob rule in which the
rights of the minority would
basically be ignored.
\_ I agree. It's a good check. The
appointment for life is
important--that way it takes
decades to shift the entire
makeup of the court, so one group
can't easily dominate it. But
if it goes beyond a check it's a
problem. -emarkp
judges who act in a limited way.
I, however, think of the judiciary as a feedback
system for the legislature. The legislature has
the primary role in setting national policy, &c.
Sometimes, the legislature doesn't do a good job
and fails to think things through. This is where
the ct can come in and make sure that things are
running smoothly. Actions taken by the court can
provide valuable feedback to the legislature to
get its act together and fix things rather than
just dink around discussing pay raises, and 1/2
dead people in FL.
With that as a reference, here are some points re strict
constructionism:
(1) Often its not clear what the rule actual is - congress will
frequently enact legislation drawing power from various
clauses in the constitution but fail to define key terms
and the circuits will split over the meaning. The Court
needs to have justices who can think about the long term
effects of their actions and act appropriately. Acting like
a curmudgeon and applying 18th-19th century principles to
things like the Internet isn't realistic - the framers had
no idea about this type of communication/commerce and you
need judges who can look to the past for analogies but also
look to the future.
\_ There is something about your rhetoric I find vaguely
unsettling. -- ilyas
\_ Consider Sony for example. Yes there were people
using the VCR to violate copyright but it wasn't
clear that Sony had done anything wrong in making
a product that enabled this. The fact that the
ct saw its way clear to say that producing a product
w/o more wasn't enough to infringe copyright was a
big deal (Sony was going to be decided the other way
until one justice switched his vote, iirc b/c of
the implications of just a decision).
(2) Sometimes you have a doctrine that is the "law" and is
defended as such but in reality is just a cover for something
more insidious like racism. In these situations you need to
be flexible to stamp out behavior that has no place in a
civilized society.
\_ Again, who defines "civilized society"? Again I argue that
society should, not a panel of judges. -emarkp
\_ So you would be willing to accept racism until
the states voluntarily decided to outlaw it?
And that was going to happen like NEVER. In
some instances, the states/people need a nudge
in the "right" direction.
\_ So you've turned prophet and caretaker now? You can
say what would or would not happen? You can decide
what the "right" direction is? Here's a question:
aren't you concerned about a group of 9 people deciding
what's "right" for you? What if all of them were
hardcore conservatives? -emarkp
\_ If you looked at the trends in desegregation
prior to Brown, it was pretty clear that the
state were doing NOTHING to overturn separate
but equal on their own.
This has nothing to do w/ me being a prophet,
it is just extrapolation based on the trends
that were present.
\_ Extrapolating to NEVER isn't justifiable IMO.
Public attitudes were changing, and I believe
it would have happened legislatively, but of
course I don't know for sure. -emarkp
\_ When would it be justifiable for the court
to step in? When 25 states had changed? 30?
47? Or never?
\_ This could be a whole different topic, but
you might be able to argue that there really
was a constitutional problem with the
implementation of seperate but equal.
\_ Not the point. I don't think it's valid to
say that it would never change, nor do I
think it's right for 5 people to determine
what's "right" for society. And on top of
that, I agree with the person below re:
PLessy v. Ferguson. -emarkp
\_ Extrapolation is never justifiable?
\_ Read it again. In this case,
extrapolating "not yet" to "NEVER" isn't
justified. -emarkp
\_ Perhaps NEVER is incorrect
b/c almost every event has
a small non-zero probability
of occuring. Yes I could
wake up tomorrow in Andromeda
and know how to speak fluent
Klingon, but its not bloody
likely.
How do you order your future affairs
w/o looking to the past/present and
seeing trends?
Re legislative intervention in Brown,
I strongly disagree. I have friends
in the south and there is still a
tendency to treat "colored" people
less favorably than "white" people.
I really doubt that an southern
state would voluntarily have integrated.
\_ I would argue that the example or Brown v.
Board of Education is invalid, because
Plessy v. Ferguson really was
unconstitutional by the 14th, IMHO.
\_ It is by no means clear that Plessy
was wrongly decided under a strict
constructionist or originalist view.
Consider that the framers put in the
3/5 compromise and the framers of
the 14th amd also created segregated
schools in Washington DC during the
same session.
No where in the text of the 14th
amd does it say the same, it just
says equal - as long as the facilities
were equal, everything was kosher.
In fact, in Brown, the Board of
Education agreed that the schools
were not equal and that they needed
to fix them, what they didn't want
was integration.
I am not sure why you think that a bunch
of conservatives would make me unhappy?
\_ Choose your bogeyman then. -emarkp
In general the conservatives tend to issue
opinions that are far more consistent w/
a free/open society than the liberals.
As an example, when the issue of police
use of thermal imagers w/o a warrant was
presented to the court, it was conservatives
who held that this use violated the 4th amd.
The liberals were all for letting the cops
do whatever they wanted. It is not clear
that a strict interpetation of the 4th amd
would have found that a thermal imager was
a search and thus fell under the 4th amd.
I would point to separate but equal as an example - clearly
the intent behind the doctrine was racist and it needed to be
ended, but the strict constructionism stood in the way of
this. This was a state law issue, but the states weren't
doing anything about it. Second, congressional intent when
the 14th amd was drafted seemed to show that segregation
was constitutional b/c the same congress created segregated
schools in DC. The Court had to be flexible to get around
the doctrine.
(3) Reasonable minds can differ as to how the framers would
apply or interpret parts of the constitution to modern
situations. You gave the example of commercial development
(Kelo). AFAIK, there were no commerical developers around
when the constitution and the bill of rights were enacted.
You MIGHT think you know how they would interpret the
situtation, but do you really know? Esp. considering the
fact that there were probably some at the constitutional
convention who would have found no problem w/ the Kelo
decision. Wouldn't it be better to have Justices who can
see that perhaps we need rules that help order affairs
in the reality of 21st century life rather than get stuck
w/ rules that were suited to 18th-19th century life?
\- wasnt part of the MARSHALL J. holding
in Barron v. Baltimore the takings clause
\- wasnt part of the MARSHALL J. holding in
Barron v. Baltimore the takings clause
didnt apply to the states but just the
national govt? what you you crazy ori-
ginalists think about that?
\_ iirc, Barron was decided in the 1830s prior to
the 14th amd. At the time it was decided it was
correct b/c the 5th amd only apply to actions
by the federal gov and not the states. However,
the 14th amd (sec 1) made the 5th amd. applicable
to actions by the states, thus the holding in
Barron is no longer correct.
\- so the whole idea of the absorbption doctrine,
and the slaughterhouse cases and 14th amd
interpretation is a big area where these kinds
of originalist interpretations become difficult
or break down. like the meaning of "congress shall
make no law" in the 1st amd no longer has the
"scope" of only applying to the congress eventhough
it "plainly" says so.
\_ The Founding Fathers deliberately set up a balance of powers
arrangement so that the different branches of government could
serve as checks on each other. If the SC turns itself into
a rubber stamp for the legislature, or even worse, the executive,
they will weaken one leg of the stool. Plus, even what exactly
a "strict" constitutionalist changes over time, as our notions
of equality and fair play and even the definitions of words change.
Furthermore, technology and other changes have made parts of the
Constitution obsolete. Isn't $10 still the limit for immigration
taxes somewhere and $20 the limit for trails by jury?
\_ The 7th amd sets the min limit for trial by jury as $20
for suits at common law. |
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