PoliticalChic
Diamond Member
The progressives have pushed their liberty-restricting and economically destructive policies by using the judiciary, realizing that they could not get the American people to ratify their agenda.
Chief Justice William Rehnquist wrote the following expaining why the 'living' Constitution is harmful and dangerous.
1. Based on the 'living' Constitution, nonelected members of the federal judiciary may address themselves to a social problem simply because other
branches of government have failed or refused to do so. These
same judges, responsible to no constituency whatever, are
nonetheless acclaimed as “the voice and conscience of contemporary
society.”
a. It is based upon the proposition that federal
judges, perhaps judges as a whole, have a role of their own,
quite independent of popular will, to play in solving society’s
problems.
2. . Judges then are no longer the keepers of
the covenant; instead they are a small group of fortunately
situated people with a roving commission to second-guess
Congress, state legislatures, and state and federal administrative
officers concerning what is best for the country. Surely
there is no justification for a third legislative branch in the federal
government, and there is even less justification for a federal
legislative branch’s reviewing on a policy basis the laws
enacted by the legislatures of the fifty states.
3. . [T]he living Constitution, however,
suggests that if the states’ legislatures and governors, or
Congress and the President, have not solved a particular social
problem, then the federal court may act. I do not believe that
this argument will withstand rational analysis. Even in the face
of a conceded social evil, a reasonably competent and reasonably
representative legislature may decide to do nothing. It may
decide that the evil is not of sufficient magnitude to warrant
any governmental intervention. It may decide that the financial
cost of eliminating the evil is not worth the benefit which
would result from its elimination. It may decide that the evils
which might ensue from the proposed solution are worse than
the evils which the solution would eliminate.
4. The frustration of the citizenry, who had thought themselves
charged with the responsibility for making such decisions, is
well expressed in Abraham Lincoln’s First Inaugural Address:
[T]he 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.
5. . A further difficulty with …the notion of the living
Constitution is that it seems to ignore totally the nature of political
value judgments in a democratic society. If such a society
adopts a constitution and incorporates in that constitution
safeguards for individual liberty, these safeguards indeed do
take on a generalized moral rightness or goodness. They assume
a general social acceptance neither because of any intrinsic
worth nor because of any unique origins in someone’s idea
of natural justice but instead simply because they have been
incorporated in a constitution by the people.
a. The laws that emerge after a typical political struggle in
which various individual value judgments are debated likewise
take on a form of moral goodness because they have been
enacted into positive law.
6. It is even more difficult for either
a single individual or indeed for a large group of individuals to
succeed in having such a value judgment embodied in the
Constitution. All of these burdens and difficulties are entirely
consistent with the notion of a democratic society. It should not
be easy for any one individual or group of individuals to impose
by law their value judgments upon fellow citizens who
may disagree with those judgments. Indeed, it should not be
easier just because the individual in question is a judge.
7. . the living Constitution, in the
last analysis, is a formula for an end run around popular gov-
ernment. To the extent that it makes possible an individual’s
persuading one or more appointed federal judges to impose on
other individuals a rule of conduct that the popularly elected
branches of government would not have enacted and the voters
have not and would not have embodied in the Constitution,
… the living Constitution is genuinely
corrosive of the fundamental values of our democratic society.
http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf
Chief Justice William Rehnquist wrote the following expaining why the 'living' Constitution is harmful and dangerous.
1. Based on the 'living' Constitution, nonelected members of the federal judiciary may address themselves to a social problem simply because other
branches of government have failed or refused to do so. These
same judges, responsible to no constituency whatever, are
nonetheless acclaimed as “the voice and conscience of contemporary
society.”
a. It is based upon the proposition that federal
judges, perhaps judges as a whole, have a role of their own,
quite independent of popular will, to play in solving society’s
problems.
2. . Judges then are no longer the keepers of
the covenant; instead they are a small group of fortunately
situated people with a roving commission to second-guess
Congress, state legislatures, and state and federal administrative
officers concerning what is best for the country. Surely
there is no justification for a third legislative branch in the federal
government, and there is even less justification for a federal
legislative branch’s reviewing on a policy basis the laws
enacted by the legislatures of the fifty states.
3. . [T]he living Constitution, however,
suggests that if the states’ legislatures and governors, or
Congress and the President, have not solved a particular social
problem, then the federal court may act. I do not believe that
this argument will withstand rational analysis. Even in the face
of a conceded social evil, a reasonably competent and reasonably
representative legislature may decide to do nothing. It may
decide that the evil is not of sufficient magnitude to warrant
any governmental intervention. It may decide that the financial
cost of eliminating the evil is not worth the benefit which
would result from its elimination. It may decide that the evils
which might ensue from the proposed solution are worse than
the evils which the solution would eliminate.
4. The frustration of the citizenry, who had thought themselves
charged with the responsibility for making such decisions, is
well expressed in Abraham Lincoln’s First Inaugural Address:
[T]he 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.
5. . A further difficulty with …the notion of the living
Constitution is that it seems to ignore totally the nature of political
value judgments in a democratic society. If such a society
adopts a constitution and incorporates in that constitution
safeguards for individual liberty, these safeguards indeed do
take on a generalized moral rightness or goodness. They assume
a general social acceptance neither because of any intrinsic
worth nor because of any unique origins in someone’s idea
of natural justice but instead simply because they have been
incorporated in a constitution by the people.
a. The laws that emerge after a typical political struggle in
which various individual value judgments are debated likewise
take on a form of moral goodness because they have been
enacted into positive law.
6. It is even more difficult for either
a single individual or indeed for a large group of individuals to
succeed in having such a value judgment embodied in the
Constitution. All of these burdens and difficulties are entirely
consistent with the notion of a democratic society. It should not
be easy for any one individual or group of individuals to impose
by law their value judgments upon fellow citizens who
may disagree with those judgments. Indeed, it should not be
easier just because the individual in question is a judge.
7. . the living Constitution, in the
last analysis, is a formula for an end run around popular gov-
ernment. To the extent that it makes possible an individual’s
persuading one or more appointed federal judges to impose on
other individuals a rule of conduct that the popularly elected
branches of government would not have enacted and the voters
have not and would not have embodied in the Constitution,
… the living Constitution is genuinely
corrosive of the fundamental values of our democratic society.
http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf
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