Why Lawyers Don’t Understand Law Part I

[jillian]

Correct.
I learned from him.


But it certainly isn't what Jillian said, nor support for the case law system of Pound and Langdell, is it.

most lawyers and judges think rhenquist was a horrible justice... just so you know.

and yes, there is a school of the court that believes that nonsense. the reality is that the most activist justices have always been your pretend 'originalists' who strike down more laws than liberal justices.

so chew on that a while...

if you think they're not ideologues, you're kidding yourself. they are, however, trying to pervert our system.

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property.

http://www.nytimes.com/2005/04/19/opinion/19tue3.html?_r=0
now for the numbers:

Justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.

Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.

http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html

 

[PoliticalChic]

Because is the case law method not a back-door method to change the constitution
by allowing judges to insert their own proclivities in place of the enshrined document?

no... because case law is the basis for our legal system.

Sadly, you are correct.


It has replaced.....displaced....the United States Constitution.


Some lawyers are able to rise beyond the law school indoctrination, and never lose sight of the 'ever fixed mark.'
Not Chief Justice Rehnquist, or Judge Bork, among others.
But most.



Shakespeare refers 'love' as such.....but his could be suggesting the center of our legal system:

Love is not love
Which alters when it alteration finds,
Or bends with the remover to remove:
O no! it is an ever-fixed mark


The case law system bent our judicial system....bent, and broke it.

 

[PoliticalChic]

Correct.
I learned from him.


But it certainly isn't what Jillian said, nor support for the case law system of Pound and Langdell, is it.

most lawyers and judges think rhenquist was a horrible justice... just so you know.

and yes, there is a school of the court that believes that nonsense. the reality is that the most activist justices have always been your pretend 'originalists' who strike down more laws than liberal justices.

so chew on that a while...

if you think they're not ideologues, you're kidding yourself. they are, however, trying to pervert our system.

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property.

http://www.nytimes.com/2005/04/19/opinion/19tue3.html?_r=0
now for the numbers:

Justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.

Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.

http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html

"most lawyers and judges think rhenquist was a horrible justice... just so you know."

There is no doubt about that.

The reason is as I posted just above.

 

[PoliticalChic]

Correct.
I learned from him.


But it certainly isn't what Jillian said, nor support for the case law system of Pound and Langdell, is it.

most lawyers and judges think rhenquist was a horrible justice... just so you know.

and yes, there is a school of the court that believes that nonsense. the reality is that the most activist justices have always been your pretend 'originalists' who strike down more laws than liberal justices.

so chew on that a while...

if you think they're not ideologues, you're kidding yourself. they are, however, trying to pervert our system.

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property.

http://www.nytimes.com/2005/04/19/opinion/19tue3.html?_r=0
now for the numbers:

Justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.

Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.

http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html

As far as originalists, and strict constitutionalists falling short of perfection....


Our ideals resemble the stars, which illuminate the night. NO one will ever be able to touch them. But the men, who, like the sailors on the ocean, take them for guidelines, will undoubtedly reach their goal.
Carl Schurz



It is more than interesting that Obama's mentor knew this as well, and honed it as a weapon against the just:

'For example, since the Haves publicly pose as the custodians of responsibility, morality, law, and justice (which are frequently strangers to each others), they can be constantly pushed to live up to their own book of morality and regulations. No organizations, including organized religion, can live up to the letter of its own book. You can club them to death with their "book" of rules and regulations. This is what that great revolutionary, Paul of Tarsus, knew when he wrote to the Corinthians: "Who also hath made us able ministers of the New Testament; not of the letter, but of the spirit, for the letter killeth." '
-- Saul Alinsky, Rules for Radicals, P.152
Archived-Articles: The Totalitarian Minority



But, isn't it better to try...even if one fails....than to throw up one's hands to be part of the herd?

 

[George Costanza]

Because is the case law method not a back-door method to change the constitution
by allowing judges to insert their own proclivities in place of the enshrined document?

A somewhat cynical way of putting it but, yes - that is precisely what happens. Judicial review of the legislative branch of government is allowed here. In fact, it is a cornerstone of our governmental system.

Cheer up, old sport - quite often it works in favor of the Right. Come to think of it, I don't hear too much complaining about "judicial activism" when that happens. Odd . . .

 

[PoliticalChic]

Because is the case law method not a back-door method to change the constitution
by allowing judges to insert their own proclivities in place of the enshrined document?

A somewhat cynical way of putting it but, yes - that is precisely what happens. Judicial review of the legislative branch of government is allowed here. In fact, it is a cornerstone of our governmental system.

Cheer up, old sport - quite often it works in favor of the Right. Come to think of it, I don't hear too much complaining about "judicial activism" when that happens. Odd . . .

"...quite often it works in favor of the Right."

Poor Georgie.....you miss the point, again.

This is not about Right or Left winning.

It's about whether the Constitution applies...of the opinion of the current crop of sitting judges and Justices, does.

Originalism is based on the following key precepts:
that the Constitution has a fixed meaning;
that this meaning is the “original public meaning” as understood at the time of enactment;
that that public meaning has the force of law;

and finally, that constitutional interpretation (figuring out what the words mean) and constitutional construction (applying those words to a particular set of facts) are not the same thing.



That is my view...and that of the poster who pointed out that case law is a 'back-door' (I call it an illegal) way of changing the Constitution.

 

[George Costanza]

Because is the case law method not a back-door method to change the constitution
by allowing judges to insert their own proclivities in place of the enshrined document?

A somewhat cynical way of putting it but, yes - that is precisely what happens. Judicial review of the legislative branch of government is allowed here. In fact, it is a cornerstone of our governmental system.

Cheer up, old sport - quite often it works in favor of the Right. Come to think of it, I don't hear too much complaining about "judicial activism" when that happens. Odd . . .

"...quite often it works in favor of the Right."

Poor Georgie.....you miss the point, again.

This is not about Right or Left winning.

It's about whether the Constitution applies...of the opinion of the current crop of sitting judges and Justices, does.

Originalism is based on the following key precepts:
that the Constitution has a fixed meaning;
that this meaning is the “original public meaning” as understood at the time of enactment;
that that public meaning has the force of law;

and finally, that constitutional interpretation (figuring out what the words mean) and constitutional construction (applying those words to a particular set of facts) are not the same thing.



That is my view...and that of the poster who pointed out that case law is a 'back-door' (I call it an illegal) way of changing the Constitution.

No, YOU miss the point - AGAIN. When right wingnuts such as yourself talk about the "fixed meaning" of the Constitution, what they are really talking about is an interpretation of the wording of the Constitution that suits their purpose. If that were not the case, the Right would not be blathering about "strict Construction" and all of the other buzz phrases used in an attempt to disguise their real purpose here.

Left to their own devices, the Right can show you where the Constitution allows the enactment of racist laws and argue that the judicial decisions applying the Due Process Clause to the states were examples of "judicial activism."

I tire of your not-so-skillfully hidden agenda, PC, as do most thinking readers of your cut and paste posts.

Have you ever addressed the Marbury v. Madison decision? What do you have to say about that?

 

[Wry Catcher]

Because is the case law method not a back-door method to change the constitution
by allowing judges to insert their own proclivities in place of the enshrined document?

A somewhat cynical way of putting it but, yes - that is precisely what happens. Judicial review of the legislative branch of government is allowed here. In fact, it is a cornerstone of our governmental system.

Cheer up, old sport - quite often it works in favor of the Right. Come to think of it, I don't hear too much complaining about "judicial activism" when that happens. Odd . . .

To ignore stare decisis would unmask Lady Liberty and any judge would be empowered to make law from the bench and lead us into chaos.

 

[Wry Catcher]

Because is the case law method not a back-door method to change the constitution
by allowing judges to insert their own proclivities in place of the enshrined document?

A somewhat cynical way of putting it but, yes - that is precisely what happens. Judicial review of the legislative branch of government is allowed here. In fact, it is a cornerstone of our governmental system.

Cheer up, old sport - quite often it works in favor of the Right. Come to think of it, I don't hear too much complaining about "judicial activism" when that happens. Odd . . .

"...quite often it works in favor of the Right."

Poor Georgie.....you miss the point, again.

This is not about Right or Left winning.

It's about whether the Constitution applies...of the opinion of the current crop of sitting judges and Justices, does.

Originalism is based on the following key precepts:
that the Constitution has a fixed meaning;
that this meaning is the “original public meaning” as understood at the time of enactment;
that that public meaning has the force of law;

and finally, that constitutional interpretation (figuring out what the words mean) and constitutional construction (applying those words to a particular set of facts) are not the same thing.



That is my view...and that of the poster who pointed out that case law is a 'back-door' (I call it an illegal) way of changing the Constitution.

Your view is your biased opinion sans any critical thought.

 

[PoliticalChic]

A somewhat cynical way of putting it but, yes - that is precisely what happens. Judicial review of the legislative branch of government is allowed here. In fact, it is a cornerstone of our governmental system.

Cheer up, old sport - quite often it works in favor of the Right. Come to think of it, I don't hear too much complaining about "judicial activism" when that happens. Odd . . .

"...quite often it works in favor of the Right."

Poor Georgie.....you miss the point, again.

This is not about Right or Left winning.

It's about whether the Constitution applies...of the opinion of the current crop of sitting judges and Justices, does.

Originalism is based on the following key precepts:
that the Constitution has a fixed meaning;
that this meaning is the “original public meaning” as understood at the time of enactment;
that that public meaning has the force of law;

and finally, that constitutional interpretation (figuring out what the words mean) and constitutional construction (applying those words to a particular set of facts) are not the same thing.



That is my view...and that of the poster who pointed out that case law is a 'back-door' (I call it an illegal) way of changing the Constitution.

No, YOU miss the point - AGAIN. When right wingnuts such as yourself talk about the "fixed meaning" of the Constitution, what they are really talking about is an interpretation of the wording of the Constitution that suits their purpose. If that were not the case, the Right would not be blathering about "strict Construction" and all of the other buzz phrases used in an attempt to disguise their real purpose here.

Left to their own devices, the Right can show you where the Constitution allows the enactment of racist laws and argue that the judicial decisions applying the Due Process Clause to the states were examples of "judicial activism."

I tire of your not-so-skillfully hidden agenda, PC, as do most thinking readers of your cut and paste posts.

Have you ever addressed the Marbury v. Madison decision? What do you have to say about that?

Still wrong, Georgie....

Here's how it is done:


As a basis for understanding the Commerce Clause, Randy Barnett, law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist, examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’


So....that makes you a "left wingnut"?


Clearly you've imbibed the Kool Aid.


Hey....if you're a good boy, I'll each you about the Lochner case next time.

 

[PoliticalChic]

A somewhat cynical way of putting it but, yes - that is precisely what happens. Judicial review of the legislative branch of government is allowed here. In fact, it is a cornerstone of our governmental system.

Cheer up, old sport - quite often it works in favor of the Right. Come to think of it, I don't hear too much complaining about "judicial activism" when that happens. Odd . . .

"...quite often it works in favor of the Right."

Poor Georgie.....you miss the point, again.

This is not about Right or Left winning.

It's about whether the Constitution applies...of the opinion of the current crop of sitting judges and Justices, does.

Originalism is based on the following key precepts:
that the Constitution has a fixed meaning;
that this meaning is the “original public meaning” as understood at the time of enactment;
that that public meaning has the force of law;

and finally, that constitutional interpretation (figuring out what the words mean) and constitutional construction (applying those words to a particular set of facts) are not the same thing.



That is my view...and that of the poster who pointed out that case law is a 'back-door' (I call it an illegal) way of changing the Constitution.

Your view is your biased opinion sans any critical thought.

How can I put this delicately.....

...Oh, yes.....You're a dope.

 

[George Costanza]

"...quite often it works in favor of the Right."

Poor Georgie.....you miss the point, again.

This is not about Right or Left winning.

It's about whether the Constitution applies...of the opinion of the current crop of sitting judges and Justices, does.

Originalism is based on the following key precepts:
that the Constitution has a fixed meaning;
that this meaning is the “original public meaning” as understood at the time of enactment;
that that public meaning has the force of law;

and finally, that constitutional interpretation (figuring out what the words mean) and constitutional construction (applying those words to a particular set of facts) are not the same thing.



That is my view...and that of the poster who pointed out that case law is a 'back-door' (I call it an illegal) way of changing the Constitution.

No, YOU miss the point - AGAIN. When right wingnuts such as yourself talk about the "fixed meaning" of the Constitution, what they are really talking about is an interpretation of the wording of the Constitution that suits their purpose. If that were not the case, the Right would not be blathering about "strict Construction" and all of the other buzz phrases used in an attempt to disguise their real purpose here.

Left to their own devices, the Right can show you where the Constitution allows the enactment of racist laws and argue that the judicial decisions applying the Due Process Clause to the states were examples of "judicial activism."

I tire of your not-so-skillfully hidden agenda, PC, as do most thinking readers of your cut and paste posts.

Have you ever addressed the Marbury v. Madison decision? What do you have to say about that?

Still wrong, Georgie....

Here's how it is done:


As a basis for understanding the Commerce Clause, Randy Barnett, law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist, examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’


So....that makes you a "left wingnut"?


Clearly you've imbibed the Kool Aid.


Hey....if you're a good boy, I'll each you about the Lochner case next time.

You apparently missed that portion of my post making reference to Marbury v. Madison. How do you reconcile the decision in that case with your contention that the judiciary has no power to interpret Constitutional issues?

 

[George Costanza]

Because is the case law method not a back-door method to change the constitution
by allowing judges to insert their own proclivities in place of the enshrined document?

A somewhat cynical way of putting it but, yes - that is precisely what happens. Judicial review of the legislative branch of government is allowed here. In fact, it is a cornerstone of our governmental system.

Cheer up, old sport - quite often it works in favor of the Right. Come to think of it, I don't hear too much complaining about "judicial activism" when that happens. Odd . . .

To ignore stare decisis would unmask Lady Liberty and any judge would be empowered to make law from the bench and lead us into chaos.

You bring up an interesting side issue here - stare decisis v. judicial legislation. I have participated in numerous threads on this very point. It isn't the issue that is being raised by this thread, but the issue being raised by this thread is totally whacko, so I would be happy to kick a real issue around for a bit.

No one disagrees with your statement about stare decisis. It is a critical element in the construction of our judicial system. But that is not to say that a long-standing precedent cannot be changed. We all know that it can. Usually (but not always), the reason for a change in long-standing precedent has to do with social changes. In 1896, Plessy v. Ferguson established the Separate But Equal doctrine, legitimatizing racial segregation in public facilities. In 1954, Brown v. Board of Education struck down the Plessy v. Ferbuson decision, holding that the Separate But Equal doctrine was unconstitutional.

Plessy v. Ferguson was possibly the right decision for its time. So was Brown v. Board of Education.

I don't think you are opposed to the idea that stare decisis does not necessarily mean that legal precendent is unchangeable, are you? What are your thoughts on that?

Memo to PC: Please do not respond to this sub-topic. The adults are trying to have an intelligent conversation here . . .

 

[PoliticalChic]

No, YOU miss the point - AGAIN. When right wingnuts such as yourself talk about the "fixed meaning" of the Constitution, what they are really talking about is an interpretation of the wording of the Constitution that suits their purpose. If that were not the case, the Right would not be blathering about "strict Construction" and all of the other buzz phrases used in an attempt to disguise their real purpose here.

Left to their own devices, the Right can show you where the Constitution allows the enactment of racist laws and argue that the judicial decisions applying the Due Process Clause to the states were examples of "judicial activism."

I tire of your not-so-skillfully hidden agenda, PC, as do most thinking readers of your cut and paste posts.

Have you ever addressed the Marbury v. Madison decision? What do you have to say about that?

Still wrong, Georgie....

Here's how it is done:


As a basis for understanding the Commerce Clause, Randy Barnett, law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist, examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’


So....that makes you a "left wingnut"?


Clearly you've imbibed the Kool Aid.


Hey....if you're a good boy, I'll each you about the Lochner case next time.

You apparently missed that portion of my post making reference to Marbury v. Madison. How do you reconcile the decision in that case with your contention that the judiciary has no power to interpret Constitutional issues?

No power?

Straw man argument.

Of course they have that power....as long as it comports with the language and original meaning of the only document the people of the United Stated consented to be governed by.



Now, let's disabuse you of your mistaken view of Marbury....

"Chief Justice John Marshall offered the opposite view in Marbury v. Madison, the case often credited with establishing judicial review. Marshall wrote that we have a written Constitution so that the limits on government power “may not be mistaken, or forgotten” and that the Constitution is “a rule for the government of courts, as well as of the legislature.”
What Is the Constitution? - By Orrin Hatch - The Corner - National Review Online


Marshall wrote that we have a written Constitution so that the limits on government power “may not be mistaken, or forgotten”

Justices or judges who abandon the original meaning of the text of the Constitution invariably end up substituting their own political philosophies for those of the framers. Americans have to decide whether they wish a government of laws or one of judges.


Get it, Georgie?
It's the Constitution....not bogus penumbras or deciding what would be the "best" outcome.

 

[PoliticalChic]

A somewhat cynical way of putting it but, yes - that is precisely what happens. Judicial review of the legislative branch of government is allowed here. In fact, it is a cornerstone of our governmental system.

Cheer up, old sport - quite often it works in favor of the Right. Come to think of it, I don't hear too much complaining about "judicial activism" when that happens. Odd . . .

To ignore stare decisis would unmask Lady Liberty and any judge would be empowered to make law from the bench and lead us into chaos.

You bring up an interesting side issue here - stare decisis v. judicial legislation. I have participated in numerous threads on this very point. It isn't the issue that is being raised by this thread, but the issue being raised by this thread is totally whacko, so I would be happy to kick a real issue around for a bit.

No one disagrees with your statement about stare decisis. It is a critical element in the construction of our judicial system. But that is not to say that a long-standing precedent cannot be changed. We all know that it can. Usually (but not always), the reason for a change in long-standing precedent has to do with social changes. In 1896, Plessy v. Ferguson established the Separate But Equal doctrine, legitimatizing racial segregation in public facilities. In 1954, Brown v. Board of Education struck down the Plessy v. Ferbuson decision, holding that the Separate But Equal doctrine was unconstitutional.

Plessy v. Ferguson was possibly the right decision for its time. So was Brown v. Board of Education.

I don't think you are opposed to the idea that stare decisis does not necessarily mean that legal precendent is unchangeable, are you? What are your thoughts on that?

Memo to PC: Please do not respond to this sub-topic. The adults are trying to have an intelligent conversation here . . .

"...but the issue being raised by this thread is totally whacko,"

Whenever a Lib resorts to that phrase, it means they have been soundly thrashed.



Let's review....on my side, Chief Justice Wm. Rehnquist, Justice Scalia, Judge Bork, Chief Justice John Marshall, Professor Randy Barnett.....


On your's.........you.


So where does 'whacko' reside?

 

[George Costanza]

Of course they (the courts) have that power....as long as it comports with the language and original meaning of the only document the people of the United Stated consented to be governed by.

And who determines whether or not the court (or a judicial decision on a constitutional issue) is "comporting with the language and original meaning" of the Constitution?

 

[jillian]

So where does 'whacko' reside?

in your threads.

 

[PoliticalChic]

So where does 'whacko' reside?

in your threads.

You certainly haven't been able to prove that, have you.

 

[PoliticalChic]

Of course they (the courts) have that power....as long as it comports with the language and original meaning of the only document the people of the United Stated consented to be governed by.

And who determines whether or not the court (or a judicial decision on a constitutional issue) is "comporting with the language and original meaning" of the Constitution?

Post #30.

"Here's how it is done:


As a basis for understanding the Commerce Clause, Randy Barnett, law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist, examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’"



Really, Georgie, you should understand this.

1. The above. Scholarship should certainly not be beyond our hightest judicial experts....should it?


2. If the Constitution says nothing about the issue, then the question should fall back upon the decisions of the Legislature and President.

This my thinking when I predicted that ObamaCare would be held constitutional.


Had the Justices found against as healthcare is not in the enumerated powers, I would have been happier....but it is within their taxing power. So said the Court.


3. Your position is that of Justice Brennan, that of a 'living' Constitution wherein good outcomes (social justice) is the aim, and the basis of court decisions. Therefore, judges can claim what they wish...without homage to the Constitution.

I'm prepared to argue against that, too.


While there is nothing 'whacko' about my position....I find your the self-serving view of jurists who see themselves as the equal of the Founders.

And, they are not.

 

[George Costanza]

To ignore stare decisis would unmask Lady Liberty and any judge would be empowered to make law from the bench and lead us into chaos.

You bring up an interesting side issue here - stare decisis v. judicial legislation. I have participated in numerous threads on this very point. It isn't the issue that is being raised by this thread, but the issue being raised by this thread is totally whacko, so I would be happy to kick a real issue around for a bit.

No one disagrees with your statement about stare decisis. It is a critical element in the construction of our judicial system. But that is not to say that a long-standing precedent cannot be changed. We all know that it can. Usually (but not always), the reason for a change in long-standing precedent has to do with social changes. In 1896, Plessy v. Ferguson established the Separate But Equal doctrine, legitimatizing racial segregation in public facilities. In 1954, Brown v. Board of Education struck down the Plessy v. Ferbuson decision, holding that the Separate But Equal doctrine was unconstitutional.

Plessy v. Ferguson was possibly the right decision for its time. So was Brown v. Board of Education.

I don't think you are opposed to the idea that stare decisis does not necessarily mean that legal precendent is unchangeable, are you? What are your thoughts on that?

Memo to PC: Please do not respond to this sub-topic. The adults are trying to have an intelligent conversation here . . .

"...but the issue being raised by this thread is totally whacko,"

Whenever a Lib resorts to that phrase, it means they have been soundly thrashed.



Let's review....on my side, Chief Justice Wm. Rehnquist, Justice Scalia, Judge Bork, Chief Justice John Marshall, Professor Randy Barnett.....


On your's.........you.


So where does 'whacko' reside?

John Marshall? You want John Marshall? Here, let me give you a little John Marshall from the opinion in Marbury v. Madison:

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each. . . .

"So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. . . . "

Well?