Strict Constitutional Constructionists and Judicial Review

[Zakalwe]

@Mtgman

I, however, have very little faith in the ability of legislators to capture the spirit of the law in the letter of the law. The letter of the law is a flawed mirror of the spirit of the law and when they are in conflict the letter should yield.

<shameless plug for my own thread>
Then you disagree with the majority ruling in Exxon v. Allapattah issued last week?
</shamless plug for my own thread>

Seriously, this would be a hijack of this thread, but I’d love to explore this further.

[Liberal]

@Mtgman

I, however, have very little faith in the ability of legislators to capture the spirit of the law in the letter of the law. The letter of the law is a flawed mirror of the spirit of the law and when they are in conflict the letter should yield.

Just wanted to make you aware that I have appropriate your comment as an analogy to physicalism versus spiritualism:

http://boards.straightdope.com/sdmb/showpost.php?p=6312512&postcount=80

[Freddy_the_Pig]

@John Mace

No it doesn’t. It wasn’t until the 14th amendment was passed that the Bill of Rights (first ten amendments) were considered binding on the states. For example, a state could “establish” a religion, as many in fact did, in the early years of the republic.

Yes, but the process of judicial review of state laws predates incorporation. Incorporation vastly expanded the number of provisions within the Constitution against which state laws had to be measured, but there were always some restrictions–for example, states couldn’t pass ex post facto laws.

The first case in which SCOTUS struck down a state law as repugnant to the federal Constitution was Fletcher v. Peck, dated 1810. In the earlier case of Ware v. Hylton (from 1796, predating even Marbury) SCOTUS struck down a state law as repugnant to a federal treaty.

[Mtgman]

@Liberal

Just wanted to make you aware that I have appropriate your comment as an analogy to physicalism versus spiritualism:

http://boards.straightdope.com/sdmb/showpost.php?p=6312512&postcount=80

I wouldn’t say the letter of the law is a “pale shadow”. That implies the letter of the law has no substance or what substance it does have can not impact us. The letter of the law is like a mirror. A substantial entity in and of itself. It follows its own rules, which are different from those of the world of intent, and can be distorted via different means(as a mirror can be flexed or melted to distort the image). The letter of the law can cause harm in some situations(think loopholes which allow toxic waste dumping, or any number of harmful things allowed by loopholes not consistent with the spirit of the law) just as a mirror which is not perfectly finished can cut someone.

Mostly I like the analogy because everyone knows that a mirror is a highly precise implement and is virtually impossible to get perfect. A mirror image will always have some flaws the subject does not, due to the nature of being a mirror. The danger of a broken mirror, or even a roughly finished/improperly framed one, is clear to the layman and strikingly analogous to broken legal procedures or improperly framed statutes. Broken procedures and bad statutes can be extremely harmful.

Now a mirror has its good points too. A mirror is an objective reality. No pretending those love handles don’t exist when you’re looking in a good mirror. Anyone else who sees you in that mirror will see the same thing(unless they come from different vantage points, but the analogy holds here too as various political ideals color the way individuals percieve the law even just reading the statutes) and this forms a common ground on which everyone can stand. With this common ground and pure reflection, visible through the same means to everyone, of the spirit of our ideals we can make a society which reaches for fairness and impartiality under the law.

It is ultimately a judgement call as to which approach one takes. I have a lot of sympathy for those who choose the impartial reality of the mirror. I, however, choose the purity of the ideal the mirror imperfectly reflects.

Enjoy,
Steven

[Steve_MB]

@CandidGamera

He was having none of my ‘prevention of the tyranny of the majority’ rebuttal.

Well, then, he’s just hopelessly mired in ignorance. It’s obvious to any rational person that you can’t trust the same people to both make the laws and decide whether the laws pass consitutional muster.

[CandidGamera]

@Steve MB

Well, then, he’s just hopelessly mired in ignorance. It’s obvious to any rational person that you can’t trust the same people to both make the laws and decide whether the laws pass consitutional muster.

To be fair, I never explicitly pointed to him out that it would be handing the fox the keys to the henhouse.

I think he’s stuck on the “will of the people” meme.

[Balle_M]

@Steve MB

Well, then, he’s just hopelessly mired in ignorance. It’s obvious to any rational person that you can’t trust the same people to both make the laws and decide whether the laws pass consitutional muster.

And many find it equally ignorant to put this power in the hands of un-elected appointees, answerable to no one.

[CandidGamera]

@Balle_M

And many find it equally ignorant to put this power in the hands of un-elected appointees, answerable to no one.

So what’s our alternative? And irrespective of one’s opinion as to whether giving the Supremes this power is smart or not, is it justified by the text of the Constitution?

I reread Marbury recently, and that’s some damn fine judgin’. And makes a pretty good argument.

The role of a judge in a case where laws may conflict is to determine if they conflict and how to resolve the conflict. According to the Constitution, its amendments trump regular garden-variety laws, so the judges have a pretty clear indication as to how to resolve any conflicts.

[Balle_M]

@CandidGamera

So what’s our alternative?

If you want to leave it in the hands of the Supremes, I’d like to see:

1. Term limits on any appointed judicial position. Alternatively, requiring re-confirmation every 4 - 6 years.

2. Age limits. I’ve dealt with the general public most of my life and I’ve found that an 80 year old just isn’t as mentally sharp as he was at sixty. This is just my experience and I will happily concede that there are exceptions.

That’s all for now…