Not sure about that, they issued some extremely controversial rulings in the 19th century, such as Dred Scott that were viciously opposed by a majority of the country but were respected regardless of that fact.
What?
I guess I would dispute the contention that Dred Scott was counter-majoritarian, or that it was duly enforced. On the contrary, it was probably opposed by a numerical minority, and was widely ignored and otherwise not enforced. Indeed, as I recall, it helped foment a little sectional conflict we call the Civil War.
It was a widely detested decision in the North. I don’t doubt it was a majority decision in the South, but by the 1850s the South was only 1/3rd of the country. People in the North were not racial egalitarians by any means, a very, very small minority was. Most were extreme bigots but a majority were anti-slavery, and they were very much against slavery being allowed in the North. Dred Scott was notable because it basically gave Southern slaveowners the right to live with their slaves anywhere in the United States, essentially preempting established state law.
A majority of the North was not in favor of going to war to end slavery, but I do say it’s highly likely a majority in the North was opposed to the South essentially being able to force the North to allow slavery. FWIW the Chief Justice who ruled on the case, Taney, was widely considered a great man by Northern legal minds until that decision. When he died in the 1860s many of them said he was a great man who ruined his reputation at the end of his career by his actions in that case. I’d say it likely this was a case that was very unpopular with a majority of the country, because it wasn’t about allowing slavery in the South or not allowing slavery in the South, but rather about telling the North it had to accept slavery even in the North because to do otherwise violated the property rights of slaveowners.
To the OP, definitely not. For cases where determining what is accepted by the public or what constitutes a reasonable person, they may be applicable, but they’re part of a case that should be made by those putting forth the arguments. IMO, if, at any time, the SCOTUS comes out with a decision that basically says “X is legal/illegal because most people want it to be”, it would be a definite point in time when the system has failed. Now, they could say it should be legal or illegal because of a standard of reasonableness, part of which is potentially based upon polls, but we’d hope that those making the arguments would be able to provide sufficient information to interpret them.
The whole point of the SCOTUS is that it’s not accountable to the public in the same way that elected officials are, where they may lose their jobs if they continue to making controversial decisions. Isn’t that the point, that they should be motivated entirely by the law and not be concerned with whether or not they may not have a job next election cycle?
Specifically with regard to Obamacare, I haven’t kept up much on the arguments, but from what I remember, all of the arguments against, that the SCOTUS would rule on, have nothing to do with anything that I think a poll would have legitimate purpose in. And so, I really hope that the popularity or unpopularity of the law will have no weight on the decision at all.
As I understand, many of the founders really didn’t believe that the general population was able to make good decisions. Even today, it’s quite possible that a particular law may have varying degrees of approval from the people, but there may be particulars about it that get lost in the soundbites and make the politician believe that, despite public opinion, he needs to do what he thinks is right.
That is, he’s there to represent the people, not just parrot opinion polls; otherwise, in today’s society, what is he really doing? We’re as much voting for his principles as we are for his ability to listen to his constituency. Obviously, if they both agree, there’s no issue, but he should know when there is a conflict when it’s worth trying to communicate his view and voting that way or when to relent and go with the public.
I think this only applies to the Four Horsemen Of The Apocalypse (Alito, Scalia, Thomas, and Roberts) If a Republican gets to name a Fifth Horseman, all we will be able to do is just go ahead and let our corporate masters stick it to us in the ass.
if the law read people must wear purple on Saturdays it would be up to the supreme court to uphold it . it would then be up to the people to change the law.
Do you meant that the Supreme Court would have the option to uphold it? Of course that is the case. But it would not be an obligation of the court to uphold that law, if such a law violates the Constitution (which it almost certainly does).
What provision(s) does it “almost certainly” violate?
No, you don’t do any of that. You get the doctor’s opinion, you study it for yourself, and you ask for a second opinion from other doctors.
Plus, all of those profesionals deal in facts. Law does not. Law is the codification of the morality of the populace. Sure, individuals may disagree on small parts, but they either agree on it overall, or the government does not have it’s popular mandate. The governor only has the power the governed give.
This country was founded on the idea that the people have the right to tell the lawmakers what to do. it was because they were taxing us when we told them not to that we started a whole revolution to kick them all out.
It doesn’t matter that our founding fathers were rather rich people who had an interest in ignoring the principle. It is what we fought for. And, unlike what Jefferson thought, we did successfully form a government that didn’t need a revolution every few years.
Finally, I just point out what the word representative means: A person chosen or appointed to act or speak for another or others. You can’t speak for me if you disagree with me.
This entire idea that congress is somehow an elitist class that gets to tell us commoners what to do is repugnant. It’s no different than saying they are dictators. To call such a democracy is to kid yourselves.
I know what the founders thought. They thought a lot of stupid things, like that the democracy wouldn’t last, that the Articles of Confederation were a good idea, that only property owners could vote, that women were inherently inferior, that slavery was something that could be compromised over, that there would be revolutions every 20 years. Heck, half of them objected to the bill of rights.
None of this changes the fact that we fought a war over the ability to govern ourselves. We objected to the inability to vote out these people we disagreed with. It just turns out that a lot of the founding fathers were either hypocrites or didn’t realize that not letting the people rule was doing the exact same thing they fought against.
I’ve pretty much already addressed the rest of your post. The people in England decided large taxes in order to get us to buy their stuff was the right thing to do. We disagreed. We had a revolution. Then we set up a government to try and prevent it from happening again.
What you think is right is irrelevant if the people who voted for you disagree. You are our representative. You are hired to give our demands a voice. You are not hired to give your own demands a voice. If you were, you wouldn’t be called a representative.
Imagine, if you would, if a very devoted Christian is elected, and they believe it’s right that freedom of religion should be abolished. According to you, since they think it’s right, they should vote for it. Over 50% of people think gay people should get married. This guy, though, has to vote against it. It doesn’t matter if 100% of the people want it, it’s still okay.
This is exactly what representative democracy is supposed to prevent. We would rightly kick out any of these people. The only way you can defend your point is to argue otherwise.
I think that in almost every case - no. But that being said, when there is a huge outcry against some decisions like the Slaughter-House cases, Kelo, corporate personhood etc. I think the Supreme Court needs to re-examine if (and if so, then how) their decision got so out of line with either the original Constitution (and so I make my point clear take the ICC, do current laws really reflect “interstate commerce” as intended by Article I?). At a certain, maybe case law has gone down a slippery slope so that what is now considered Constitutional really is not.
Take Kelo for example. Somewhere along the line of case law, “public use” came to mean “public function” and thence to “who can pay the most tax”. Stare decisis could perhaps justify each step in the process but the end result bears little resemblence to the original concept of eminent domain. For those of you that believe that the interpretation of the Constitution should adapt to reflect changes in society, then who better reflects that change other than society. I abhor judicial activism that rewrites the Constitution to reflect what that particular judge wants it to say but I think that it is appropriate for the American people to make it known how THEY want the Constitution to be interpreted and that occasionally judges should listen.