Did I say all of that? Wow. Of course, you kind of imply I’m suggesting a court run amok in a veritable orgy of legal evisceration. Not hardly.
Some things are just plain wrong. Slavery is one, denial of voting rights another. A third is oppressing a harmless minority. Any action that supports the “legitimacy” of such an oppression is contemptible, regardless of the presumed dignity of the participants.
I am satisfied that the well-born Mr. Green and the well-bred Mr. Gelding (Esq.s) have it right: the Court has been perfectly willing to go digging for precedent to fit pre-concieved outcomes. If it can be done for ill, it can be done for good.
Yes, you did say all that. I directly quoted where you said it. If there were any implications to be made, they certainly did not require much strain.
There you go again. I really must ask you, have you ever taken a course in how American government works? The courts are not the moral compass for the country, it is not for them to say what the law should be. Shall we amend the Constitution to say: “There shall be no wrong laws”? In essence that is the position you are advocating, wrong laws are unconstitutional. They are not.
Oh, for goodness’ sake, minty, bootstrap much? Lawrence was premised on a long line of cases that also pulled rights out of thin air under the auspices of substantive due process. The fact that the court has been activist in the past on these grounds doesn’t magically make them non-activist in the present when they use those same grounds.
Rhum, at the highest levels of the court system, it seems to me that we’re well beyond simple applications of clear laws to simple facts of simple cases. That stuff gets settled long before. The Supreme Court does spend almost all of its time essentially deciding what the law is and what the principles behind it are - that is hard to distinguish from actually creating laws, isn’t it? That authority brings responsibility with it - to see that the quasi-laws they create are good ones, based on what’s right as well as on what’s precedent and on what’s in accordance with which clause.
To assert that they should not consider standards of morality, or anything outside a particular philosophy of jurisprudence, in defining their decisions goes beyond naivete and into dangerous and destructive territory. The concept that there is only one correct philosophy of jurisprudence, and further that it’s a soullessly technical one, is naive in itself - if there were only one, there wouldn’t be all this discussion about strict construction and textualism and such, would there?
I think this is a brilliant summary of the position taken in this thread by minty green et al.
It may simply come down to whether or not you agree with this proposition. I expect people unfamiliar with the legal system to applaud it at first blush, but it pains me to read minty’s impassioned defense of this flawed precept, since, whatever his faults, he is no stranger to the legal system.
Laws do not become unconstitutional when they reach a certain strength of wrongness, unless the wrongness in question is also prohibited by the constitution. The constitution does not, as Rhum Runner pointed out by implication, say, “No wrong laws allowed.”
Please note the distinction between what I said–“Some laws are so wrong that they are unconstitutional”–and “No wrong laws allowed.” That’s your strawman, not mine.
And I’m fine with that too, since that the 14th Amendment delegated power to the judiciary to determine when some laws are so wrong that they are unconstitutional.
If you don’t like it, I suggest you amend the Constitution.
I’ve never claimed Marbury was wrongly decided. Neither to the best of my knowledge have other strict constructionists (who may take issue with particular aspects of the case, but generally concur in the basic correctness of its central holding).
Stare decisis dictates that prior decisions, even if wrongly decided, be considered valid law in the interests of legal stability. That doesn’t mean that we shouldn’t note when prior decisions were wrongly decided, and it certainly doesn’t mean that further expanding the reach of those incorrect decisions is justifiable. **
Again: you’re bootstrapping, and it ain’t “bullshit rhetoric” to point that out
The court has used an invalid vehicle for the expansion of certain rights, namely substantive due process. That vehicle was invalid when it was first used. It does not magically become valid just because it’s been used before. Even if we accept that we need to keep around old decisions embracing that doctrine on stare decisis grounds, it does not follow that the past use of an invalid doctrine justifies modern expansion of that selfsame invalid doctrine.
Only if you believe that words are infinitely malleable and can simply be conveniently redefined at a moment’s notice in order to attain the policy choices you favor.
I again refer you to Professor Ely’s quip (who was no strict constructionist, BTW).
People have tossed out hypotheticals of various justices speaking before ostensibly liberal organizations. But for some reason I don’t seem to recall a whole bunch of instances of such. Instead, we have Scalia, Thomas, or Rhenquist before this or the other religious organization, conservative thinktank, etc. I’d be interested if anyone could identify a source indicating which justices speak how often and before whom.
Of course, it is quite a state to hear some of the justices who are being advanced as candidates to advance liberal positions…
I think this thread should be required reading for folks considering law school. Realize that your future profession contains a whole lot more Deweys than mintys and sgs. Forewarned is forearmed.
Good god. Another lawyer procreating! Woulda thought your personality sufficient birth control.
I agree with you that SCOTUS spends little time resolving cases where the law and facts are not in dispute. As to whether or not what the Court does is properly viewed as making law or not, I think it depends on the situation. Certainly there are times when dealing with matters of procedure, and of statutory interpretation, where the Court is heavily engaged in law making. There are, however, times when the court is not making law in the same way. Lawrence did not call on the Court to interpret a statutory term, resolve a conflict of laws, or review a split in lower court opinion. The case asked the court to decide if the duly enacted law of the state of Texas was in violation of the federal Constitution.
To the extent that the ruling by the court impacted the “law” of Texas, I suppose it is fair to say that the Court made “new law” but it is not, nor should it be, the Court’s prerogative to insure that the general law of the land is “right.” Some examples that come to mind, even if SCOTUS thinks that the death penalty is “wrong” they are not entitled to rule it unconstitutional in all cases. Even if the Court thinks that certain speech is “wrong” or “bad” they should not uphold laws that restrict it. (Anticipating a selective quote from Minty, let me note that I am speaking in generalities here). The point is, it really isn’t up to the Court to make those moral judgments about what the law should be.
I agree with you that if everyone agreed there would be no disagreement. The fact that there is disagreement itself is not evidence that the other side is right, or that their arguments have merit. I can assure you that the substantive due process crowd would be perfectly delighted to see the textualists disappear. They have no interest in a diversity of opinion on this issue, and would no doubt be pleased to see their intellectual dishonesty go unchallenged in the future.
:rolleyes:
I think Bricker is right, this whole five page thread comes down to whether or not you think the above quoted portion of the XIV Amendment gave the Supreme Court of the United States the power to invalidate any law it thinks is wrong as Minty has asserted it did. How Minty can claim that this is not rule by whim I still don’t understand. But, those of you who are non-lawyers and have been making emotional and philosophical arguments defending Lawrence and attacking Scalia’s reasoning should take a long hard look at both Minty’s statement and the actual text of the Amendment he cites above and recognize that that’s it; that is the sole and complete hook upon which Lawrence rests. Set aside the fact that you like the outcome, and ask yourself if that is an honest reading of the words on the page. The only answer I can come to is: No, it is not.
In the constitution, Article VII states:
"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. "
To me, that implied that only the representatives present at the convention signed on the constitution. But, a google search tells me that the States also “ratified” the constitution later. Was this ratification process a majority in 3/4 of States?
Even otherwise, I stand corrected on my statement re: Bill of Rights. It was indeed passed by 3/4 of all legislatures in a legit democratic process. (My excuse: I am not a US citizen!)
So, yes, protections for the minority is possible through amendements. That said, it may also be true that the citizenry has lost its idealism.
As posters mentioned earlier, changing the system through the legislature is a painstaking and mostly futile process. And, no, I am not arguing for using the judiciary to legislate “right” things. I do believe that the sodomy laws violated the constitution (equal protection clause). I also view the Constitution and the Bill of Rights as laws with broad intent that principally try to restrict governmental suppression of individual rights. I believe the judiciary ought to take that perspective in interpreting law.
As a textualist, how do you interperet something like: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. How do you interpret the Ninth Amendment?
IMHO, these and other such deliberately broad sentences seek to restrict the legislature’s powers on individuals. To prevent the tyranny of the majority. I can’t see how a strict textualist can find something meaningful out of them.