[brlug-poly] Constructionist or Interpretationalist

[Doug Riddle]

--- Dustin Puryear <dpuryear at usa.net> wrote:

> The Founders saw the Supreme Court as a way to
> police the other two branches
> as well as to help intervene when the two branches
> contradicted one another.
> Additionally, the Supreme Court provides a single
> Federal entity that can
> unify lower Federal courts when they too contradict
> one another (e.g., if
> one lower court nullifies a law while another
> upholds it). Finally, the
> Founders explicitly gave the Supreme Court the
> ultimate power to determine
> the constitutionality of laws, so I think it would
> be a hard argument to
> propose otherwise.
> 
> At least, that's how I see it.
> 
> So I look for a Supreme Court that understands its
> role in the Federal
> government.
> 
> Judicial activism is another matter, and one that
> every Party in the history
> of the US has been guilty of fostering. It's hard to
> really define judicial
> activitism though since it's normally the term used
> by the losers to
> describe a decision with which they disagree.

While packing the superior courts is a practice as old
as the courts, the system depends on the ability of
the those appointed to refrain from exceeding their
boundries.  Adam's appointment of Marshall comes to
mind.  He made that appointment knowing Marshall would
act as a brake of Jefferson's anti-federalist efforts,
yet Marshall, for all of being a thorn in Jefferson's
side, upheld the rights of the exeutive branch in
every particular.

When it came to packing the courts, the most blatant
and successful was FDR, and in that case both parties
screamed bloody murder and created the term limits on
the executive branch.

The amendment process is, at the end of the day, the
only way to curtail the judiciary.  Ignoring an
amendment, especially a new one aimed at directing the
judiciary exactly how to determine what is, or is not
the law of the land, for instance, the 16th amendment,
would allow Congress to toss them all out of office,
en mass.

Judical activism to me is more of a creeping
collection of precident, than a five-four decision. 
Judges, at least the professional Jurists we have been
appointing for a long time, tend to give undue weight
to precident, tying language not in the constitution
to the interpretataion of the constitution.

As mentioned on The First Amendment Center’s site,
much of the current “law” concerning the first
amendment and the freedom of
religion is the Supreme Court’s interpretation that
includes Article IV wherein religious tests for
holding office are banned.  Encroachment on freedom to
express one’s religion is constant, and as recently as
2000 Congress passed the Freedom of Land Use and
Institutionalized Persons Act to prevent state and
local governments from restricting free expression of
religion. 
http://www.fac.org/rel_liberty/history/overview.aspx

Likewise, one can see how this body of
interpretational law is being used to build a
government of no religion which was not their intent.
Specifically, article IV was amended by the bill of
rights.  To use article IV to modify a later amendment
is abhorant to the amendment process.

Regardless of political affiliation, I want a superior
court to restrict themselves to examining the acts of
Congress in light of the Constitution which grants
Congress the charter to enact laws in the first place,
not some codified set of qualifications and
modifications used to justify previous decisions.

> 
> ---
> Puryear Information Technology, LLC
> Baton Rouge, LA * 225-706-8414
> http://www.puryear-it.com
> 
> Author of "Best Practices for Managing Linux and
> UNIX Servers"
> Download your free copy:
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> 
> ----- Original Message ----- 
> From: "Doug Riddle" <doug_riddle at yahoo.com>
> To: <Politics at brlug.net>
> Sent: Tuesday, October 18, 2005 9:46 AM
> Subject: [brlug-poly] Constructionist or
> Interpretationalist
> 
> 
> > Here is a timely political question:
> >
> > What type of jurists do we need on the supreme
> court?
> >
> > The constructionists/origininalists want to see
> > jurists that try to abide by the framer's intent,
> > meaning that the constitution, and its
> ammendments,
> > should be viewed in the light of what the authors
> of
> > the constitution and the authors of the
> ammendements
> > meant to accomplish when they penned and ratified
> the
> > constitution and subsequent ammendments.  By this
> they
> > intend to leave the creation of laws and
> modification
> > of the constitution with the congress and the body
> of
> > the electorate.
> >
> > Interpretationalist seem to think that the
> ammendment
> > process is too slow to adapt to societal needs and
> > that the judges should act as mediators between an
> > increasingly divisive congress and the sociatal
> sheep,
> > the helpless, hapless masses of non-voting sheep.
> >
> > The Louisiana statewide election of October the
> 15th,
> > 2005, had a 13% turnout.  13 people out of a
> hundred
> > showed up to direct their government on how to run
> > their business and spend their money.
> >
> > As sad a state of affairs as that is, it still
> beats
> > the snot out of having nine people in robes in
> > Washington DC tell two branches of governemnt what
> > laws to write.
> >
> > If you want justice, bring your cause to the
> people.
> > There is a reason a jury of your peers can vacate
> a
> > law.  Your peers can tell justice and a law's
> intent
> > from the letter of the law.  However, when a jury
> does
> > that, it is a one time only event.  When a Jurist
> does
> > it, it is precedent, and becomes codified.
> >
> > A jury of your peers elected the people that wrote
> the
> > laws, and can, in certain circumstances, over-ride
> > them on a case-by-case basis.  A Jurist should
> never
> > be allowed to second-guess an elected body.
> >
> > An example from real life.  A woman is beaten by
> her
> > husband repeatedly for years.  Their son grows to
> be
> > about thirteen and dad starts in on him.  Mom
> tries to
> > defend him and dad knocks mom out; son shoots dad
> > twelve times.  The prosecution claims that since
> son
> > had to stop and find the box of bullets and reload
> the
> > revolver it constitutes second degree murder, a
> crime
> > of passion, rather than manslaughter, a fit of
> > reaction and anger, and certainly not an attempt
> to
> > protect his mother because trace evidence
> indicates he
> > searched for the bullets, reloaded the pistol, and
> > emptied into dear old dad again before checking to
> see
> > whether or not mom was OK.
> >
> > The defense case is pretty weak.  A lot of people
> who
> > should have come forward a long time ago testified
> > about the years of abuse.  Neither mom or son
> remember
> > a blessed thing about the death of dear old dad. 
> Mom
> > was out cold, and son doesn't remember coming home
> > from school that day.
> >
> > The prosecution wants junior tried as an adult,
> and
> > given the gravity of the case, it is.  The
> prosecution
> > wants junior to get twenty to life.  After all Mr.
> > District Attorney has designs on political office,
> and
> > a tough-on-crime record would help.
> >
> > The jury of registered voters vacates the law and
> > finds junior innocent of all charges.  A jury can
> do
> > that.  A jurist, or judge, cannot.
> >
> > A jurist can vacate a law by declaring it
> > unconstitutional, and they need scant reason for
> doing
> > so, but they cannot vacate a law in the way a jury
> > can.
> >
> > A jury can let one person go because they perceive
> the
> > letter of the law in a single case being applied
> in a
> > fashion contrary to the intent of a law.
> >
> > A jurist can sweep away a law because they
> perceive
> > the intent of a law being contrary to their views
> of
> > law.
> >
> > So, I ask again, what sort of supreme court
> justice
> > should we hope for?
> >
> >
> >
> > Warmest Regards,
> >
> > Doug Riddle
> > http://www.dougriddle.com
> > "War is God's way of teaching Americans
> geography."
> > - Ambrose Bierce
> >
> > _______________________________________________
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> > Politics at brlug.net
> >
> http://brlug.net/mailman/listinfo/politics_brlug.net
> >
> >
> 
> 
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=== message truncated ===


Warmest Regards,

Doug Riddle
http://www.dougriddle.com
"War is God's way of teaching Americans geography."
 - Ambrose Bierce