--- In [EMAIL PROTECTED], "Dan Minette" <[EMAIL PROTECTED]> wrote: > There are a few initial questions that I have. First, are you arguing for > original intent, or do you accept judicial history as law? For example, do > you think the Supreme Court is legally obliged to overturn 140 or so years > of precedent and restrict the power balance between the states and the > federal government to what it was before 1860? Or, do you accept the last > 140 years of rulings as part of the law which the Court needs to consider?
I certainly believe that there is a role for stare decisis. For example, one of my main disagreements with the Massachusetts Supreme Court ruling that instituted gay marriage in that State is that the ruling, which made a dramatic reinterpretation of the Constitution, did not provide the people of the State with the remedy option of amending the State Constitution to more explicitly state that in the process of adopting their State Constitution that the people of Massachusetts had not intended to institute gay marriages. Instead, the Massachusetts Supreme Court required institution of gay marriages sooner than the minimum timeline permitted to amend the Constitution. There is certainly a bit of a judgment call when dealing with bad precedent as to how best to overturn it. For instance, the same people who love stare decisis when it comes to Roe v. Wade, wouldn't dream of deferring to precedent in Pessy v. Ferguson or in Korematsu... > I know that you think the end of segregation was a good idea. But, do you > think that the Brown vs. Board of Education ruling was judicial activism? Do > you think that Jim Crow laws, although morally repugnant, were > constitutional? My general inclination is that there seems to be very reasonable ground based on the *plain meaning* of the text to rule such laws unconstitutional. I don't know what precedents there were in cases involving Jim Crow laws after the passage of the 14th amendment, but I think that a case of plain meaning would certainly be grounds for going against stare decisis. Such grounds do not exist in the New Jersey case, where the NJSC had to find a right to "equal protection" that does not exist in the New Jersey State Constitution, and then had to extend that right to sexual orientation, and then had to conclude that not establishing a streamlined civil union law violated those rights. I personally support civil unions, but this was absolutely the wrong way to go about establishing them. JDG _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
