6/19    Re: "strict constructionist" below.  I can't see how anyone would want
\_ Why do people not know that July=7
        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
                       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
               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
                  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?