home *** CD-ROM | disk | FTP | other *** search
- Path: sparky!uunet!optilink!cramer
- From: cramer@optilink.COM (Clayton Cramer)
- Newsgroups: misc.legal
- Subject: Re: Judicial Power = "Create" Law? Founders Said Yes.
- Message-ID: <14027@optilink.COM>
- Date: 22 Jan 93 18:34:40 GMT
- References: <1993Jan21.040853.28616@ucsu.Colorado.EDU> <1993Jan22.025140.16080@midway.uchicago.edu>
- Distribution: usa
- Organization: Optilink Corporation, Petaluma, CA
- Lines: 58
-
- In article <1993Jan22.025140.16080@midway.uchicago.edu>, thf2@ellis.uchicago.edu (Ted Frank) writes:
- > I disagree that the only alternative to original intent is a Constitution
- > that depends on the result of the last election.
- >
- > 1) Stare decisis. See, for example, Planned Parenthood v Casey. A
- > blatant attempt to stack the Court to reach a particular result failed,
- > with Reagan/Bush not even winning a majority of their own appointees.
-
- Except that stare decisis has historically been the ENEMY of liberals,
- and support for it has been what distinguished liberals from
- conservatives throughout this century. Remember the trouble that
- the Supreme Court got into for taking this seriously in the 1930s?
-
- > 2) Judges aren't elected. They're appointed for life.
-
- And of course, they are appointed by a President who is utterly
- unaffected by election results. At best, life appointment slows
- down the process of rewriting the Constitution.
-
- > 3) Even in terms of "activism," there *are* standards of judicial
- > interpretation -- no one would argue, for example, that the
- > Constitutional provision that the president must be 35 years of
- > age should be interpreted as "the President must be mature" or
- > "the President must be 2/3 as old as the average life expectancy
- > of the country" (even though both of those, BTW, are plausible
- > interpretations under 'original intent').
-
- Yet throughout the history of this country, "right of the people to
- keep and bear arms" has been interpreted radically differently.
- In the last few years, liberal judges have taken a view that this
- essentially means nothing at all -- unlike in the last century,
- where judges engaged in semantic games about what "arms" were
- protected, but usually admitted that the protected arms could be
- carried.
-
- > 5) Constitutional doctrines survive because they work, regardless of
- > ideology. Instances where Supreme Court justices agree far outnumber
-
- Work for WHO? For the Big Government sorts, who would be overjoyed
- at having the government given unlimited authority to run the lives
- of individuals. That's not what was intended, at least for the
- Federal Government.
-
- > 6) There's no evidence that original intent doctrine would produce
- > the desired certainty of results. A quick check of Scalia's opinions
- > demonstrates that a majority of his statutory interpretations get
- > overruled by Congress -- hardly the sign of an effective doctrine
- > at construing intent.
- > --
- > ted frank | thf2@ellis.uchicago.edu
-
- Are you serious? That doesn't mean that Scalia's opinions are wrong
- about original intent (though that is a possibility) -- it may just
- show that the Congress is simply unconcerned about original intent.
- --
- Clayton E. Cramer {uunet,pyramid}!optilink!cramer My opinions, all mine!
- "When freedom destroys order, order will destroy freedom." -- Eric Hoffer
- Not a goal, just a statement of reality.
-