Overruled: The Long War for Control of the U.S. Supreme Court by Damon Root
Posted by Zenphamy 9 years, 6 months ago to Government
"A riveting account of the raging debate over the future of our Constitution between those who contend that judges must 'defer' to legislatures and those who view the judiciary as an equal branch of government whose mandate is to secure the rights and liberties of the people by holding government to its just powers.
A new book just released to detail the continuing battle for individual rights against democratic majority rule. Haven't read it yet, but which side do Objectivist fall on and is it as large a problem as I think it is?
Discussion??
A new book just released to detail the continuing battle for individual rights against democratic majority rule. Haven't read it yet, but which side do Objectivist fall on and is it as large a problem as I think it is?
Discussion??
Stan Lynde did a great comic strip many years ago called Rick O'Shay. The main character, for me, was Hipshot Percussion, ex-gunfighter. When the town council of Conniption, Montana, decided to ban guns, Hipshot left town. When asked by his friend, Rick, the marshal, why he didn't want to follow the law, Hip said, "Just because it's the law, don't make it right."
http://www.my-west.com/books/tag/hipshot...
The first act of Judicial Activism goes all the way back to Madison v Marbury 1803 when the Sup. Ct. said they were the arbiter of what is constitutional. This is not found anywhere in the constitution. The Sup. Ct. has not necessarily been a great protector of Individual Rights.
The civil war era saw an expansion of Judicial Activism and the first court packing in the Legal Tender cases. But the Sup. Ct also altered patent law around this time to eternal detriment of that body of law.
After the court packing by FDR both conservatives and liberal justices deferred to Congress on matters of economic legislation. Neither group correctly interprets the Constitution based on our founding principles.
As Dagny Taggart herself might have said, "America - she is the symbol of our quest to change the world, not quit it."
Our current government is absolutely rife with those that believe they have the moral responsibility to run others' lives and don't bat an eye about changing the laws to allow them to do that. Until that mentality gets reversed, we will continue to get power-hungry maniacs vying for positions of authority.
failing to maintain the defense of the constitution?
like traitor Roberts' abdication of his role in limiting
the executive during obamacare review??? -- j
No amount of procedural rules will secure freedom for a population that does not want it or does not understand it. This is ultimately a battle of ideas.
adhere to the constitution, both in congress and
in the executive branch (what little vote I have, there)
where justices are appointed... for life. I guess that
I should ride my Harley to D.C. and drive around town
with a "Don't Tread On Me" flag on it. . or maybe
a little outhouse on the back? . (obama presidential
library -- remember.) -- j
p.s. https://www.google.com/search?q=obama+ou...
regulations, executive orders, etc. upon enactment,
without some "harmed" party initiating the review! -- j
and that we should "pit them against one another"
as the founders appeared to intend. . and I would
put time restrictions on judicial review -- the principle
of timely justice has been lost in the lawyers'
huge desire to fight and charge us for it. -- j
I heard in middle school history (so it may not be true) that the original purpose of the presidential veto was to fight unconstitutional laws. It was not intended, according to what I heard, to stop law the president disagreed with.
I mention this not just because I am an ardent supporter of term limits for all elected or appointed federal officials as a means to diminish the damage done by self-serving career politicians, but also as a Rand fan…”The evil of the world is made possible by nothing but the sanction you give it.”
So, in answer your question above to CircuitGuy as to whether or not the Framers intended for this to be "the end of the matter"... No. They gave us Article V. We, the People, have a say in the matter.
PS: And, if I might add an afterthought of my own, for those who think that voting is enough, I would submit that "Broken Glass" conservatives have been doing that since Newt’s Republican Revolution, in record numbers, election cycle after election cycle, and arguably with greater conviction than at any time in modern history. I look around at the current political landscape and am forced to ask, “So, how’s that working out for us?”
Locke and the Declaration of Independence say we have a right of revolution. Unfortunately, most revolutions just trade one bad situation for another. (Animal Farm)
Modern-day amendments are very hard to ignore (those ratified since the Bill of Rights)... at least for a few decades. An amendment is a bi-partisan political statement made in the here and now, typically the result of an overwhelmingly popular and current national movement or progression, written in clear and concise language. As such, amendments carry with them immediate and severe consequences for any agent of the government acting in violation of it, at least, as noted, for a considerable amount of time.
That cannot be said, however, for the vague and archaic language of the Articles (and, unfortunately, our Bill of Rights). A Convention of States to propose amendments to the Constitution could provide clarification and consequences to the Commerce Clause and the General Welfare Clause, among others, and could reinforce Article 1, Section1 where Congress alone is vested with the power to create law, not countless bureaucrats within the Executive branch... nor the courts, for that matter.
And all of that before they even get to my all time favorite, mandatory term limits for all federal officials! Revolution should be the absolute LAST alternative. The Founders gave us Article V... we should use it.
Is the draft voluntary? No it is not. So how can you outlaw "involuntary servitude" and have a draft?
I too find the word vague a bit lacking. It does lack specificity in many areas. Thankfully so. To me this is part of the brilliance of the document. It is specific in regards to enumerated powers, yet lacks specificity in all other things with explanation for this made clear and emphasized by virtue of the ninth and tenth amendments. This is the context that must be appreciated fully and is most often ignored to our detriment and loss of liberty. When one approaches the document with full appreciation for the history and fact that it was a document left wide open in regards to liberty and freedoms for the individuals and designed primarily as a limit on government the meaning is clear. The fact that Hamilton argued that no Bill of Rights was needed... that any enumeration would be construed as limits on un-enumerated rights of the individual, while the anti Federalists ( e.g. Jefferson in absentia and Madison et al. pushing for the Bill of Rights) demanded one that included the ninth and tenth amendments means that on general principle they agreed; all things left undocumented were freedoms/liberties left to the states and the people. The Federal government should be barred from intervention in all areas not enumerated. It would be impossible to enumerate all freedoms since they would be limitless. You are right. Full context is essential.
Regards,
O.A.
Anyway, slavery and the draft... sorry I didn't see the connection. Probably because I was draft age in 67 during Viet Nam, and as my father was career military and taught history, he assured me that Article 1, Section 8 empowered the government to raise and support an army to provide for the common defense, no matter the number and volume of moral arguments to the contrary. I think it comes back to your point about context, DB. The morality of the draft wasn't really the question, then or now - it was its constitutionality.
And then there's that reference to a well-regulated militia in the 2nd... some have argued that along with certain rights necessarily come responsibilities. This may just be one of them. The anti-federalists and even some of the nationalists were scared to death of a standing army, but they saw the need for a central government with the power to defend a nation... something the individual states had just recently had great difficulty in doing.
And as for enumerated freedoms... what a scary thought! Completely agree with OA that the context of the Articles and certain of the amendments in the Bill of Rights are routinely ignored. I'd much rather narrow the language where a clear need to do so exists and remind the government what the words "Enumerated" and "Commerce" meant when the Framers used them, and the same with "General Welfare." And I'd still like an amendment clarifying that the EPA and the IRS are NOT Congress, and that any regulation from the Executive meant to have the force of law SHALL be confirmed or ratified by Congress, or better yet, by two-thirds of the several state legislatures, since Congress seems to have abdicated its authority in that regard... that's all.
Just those few simple things, and America's state-of-being would default back to the innumerable freedoms derived from our Creator.
I side with the Framers on this... just tighten up their language and there'll be no need for a list.
A fine bit of commentary. One point: If I thought the government would respect your amendment any more than they respect the rest of the Constitution I would be more enthusiastic. At this point I am not against it, only doubtful it would help. On the other hand there is a growing movement among many for a Constitutional Convention and even if it does not reach that point the very possibility may encourage the government to move in the right direction.
Who is John Galt???
Regards,
O.A.
I share your optimism, though, about the "OMG" effect that the movement could have on Congress. I've seen at least one report on Article V that Congress commissioned early last year in March, I believe, asking their research arm to investigate how extensive the state-driven A5 movement was, whether it was legal or not, what the possible impact of the movement could be, and what their role would be should enough states meet the threshold and Congress actually had to call the convention. Just the fact that they asked for a study shows that they are aware of the unrest out here in the hinterlands, and as far as I'm concerned, that's a good thing.
I believe I read somewhere that the 17th amendment came about as a result of Congress bowing to the will of the people, as evidenced at the time by a state-driven Article V push. If I recall correctly, Congress saw the writing on the wall and did an end-run around the states, drafting and passing their own version of the amendment. Not that I think the 17th was anything but a travesty to States’ Rights, but I definitely see it as an example of some much-needed external stimuli, the "encouragement" you were referring to.
Frankly, even if we never get the clarification of that imprecise (but not vague) language that I called for above, language that constitutional lawyers and Supreme Court Justices love so much because it makes it so much easier for them to interpret into this “living document” whatever the hell is politically expedient at the time, just mounting the movement itself is good for the electorate.
As a people, we know so little about our history. I might even go a bit further and say that we really don’t care… which in all actuality just might mean that this experiment in republican federalism has been so successful that we now literally take it for granted. The system has worked almost flawlessly for the better part of the last two and a quarter centuries, requiring very little maintenance. So, like a sound and reliable automobile, there’s been no pressing need for us to retain for ourselves the knowledge of how to tune it up.
My fear is that if we wait much longer, this new generation of low-information citizens, accustomed to instant gratification, will become impatient and frustrated, and will jump at the first chance to buy something new rather than take the time to repair the one we have.
You are right about our uninformed citizens. If we are to have a chance of repair, we must start with restoring proper education regarding our history. I just got my first viewing of D'Souza's new documentary ("America: Imagine the World Without Her") on DVD last night. I highly recommend it and think we should pass it around "liberally." Yuch... even in that form the word leaves a bad taste...
To the future!
Yes. The claim that the veto is to fight unconstitutional laws is not mine but something I heard in middle school that may not be true. I don't recall them saying it was supposed to be the *only* way to stop unconstitutional law. I think the idea was the exec branch was supposed to be more limited, limited to keeping the gov't from doing questionable things rather than making the gov't do things.