On Wed, Nov 06, 2002 at 12:11:55AM -0500, Russ Herrold wrote:
> On Tue, 5 Nov 2002, Paul M Foster wrote:
>
> > Russ mentioned a case back in the 1700's one time, the first one where
> > the federal Supreme Court decided to "interpret" the law. Might have
> > been a good idea to start impeaching judges right then. Then maybe we
> > wouldn't have had to deal with 200+ years of judges doing it.
>
> Marbury v. Madison. A well stated precis is at:
> http://www.jmu.edu/madison/marbury/background.htm
>
> Particularly telling is this excerpt:
> "But through its role as arbiter of the Constitution, [the
> federal Supreme Court] has, especially in the twentieth
> century, been the chief agency for the expansion of individual
> rights." --
>
> Clothing the federal Judiciary's 'role as arbiter' -- a
> hopefully neutral referee -- to put a sugar coat on the
> judicial activism from 1950 on, is a pretty nice prevarication
> -- it is raw judicial usupration of the political checks and
> balances between the three Branches.
>
The expansion of "individual rights" beyond what the Constitution
envisioned is highlighted by decisions like Miranda, where the court
simply makes things up as they go, with complete disregard for the
Constitution. Here we have a criminal whose rights are supposedly
abridged, and rather than penalize the abridgers, we simply free the
criminal. Beyond reason, and way beyond the Constitution.
It would appear that the Supreme Court has taken upon itself the duty of
filling the gaps where Congress has failed to act. Witness the
"abortion" decision handed down by the Supreme Court many years ago.
This is actually an issue that Congress should have addressed. And when
faced with the case, the Supreme Court should simply have said, "No law
covers this. The Constitution is mute on this point. Look to Congress
for guidance."
A narrow view of the Court's role in society would be for it to 1)
decide on federal cases which have been appealed all the way to its
level, 2) decide on cases brought between the states themselves, and 3)
determine the constitutionality of laws passed by Congress. In the
latter case, I don't see the the Court has much choice, since there is
no provision for Congress doing this. The Executive branch can't do it,
either. A prime example of this is the interpretation of the Second
Amendment, where its interpretation has depended on the party in power
in the White House at the time.
So the question is, is there any viable alternative to having the
Supreme Court determine the "constitutionality" of laws passed by
Congress?
Paul
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