--- In [EMAIL PROTECTED], "jdiebremse" <[EMAIL PROTECTED]> wrote: > > > > --- In [EMAIL PROTECTED], "Dan Minette" <dsummersminet@> 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.
OK, that helps me understand your position, thanks. > >>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. OK, that also helps me understand your position. This position doesn't seem to be politically based (e.g. any decision for my side is strict intepretation while any decision I differ with is judicial activism). While we may end up having some differences on proper interpretation, our argreement on this furnishes a very firm basis for additional discussions. In other words, we can discuss the ideas involved instead of engaging in partisian sniping that neither one of us likes. The thesis that I would like to set forth is that solid decisions that are not examples of judicial activism have long been decried as such, while the judicial activism of conservative judges has been appauded by those same people. One of the reasons I asked about the civil rights decisions is that they provided the paradigm for conservative/Southern complaints about liberal activist judges. I am old enough to recall the "Impeach Earl Warren" movement. We agree that these basic decisions were proper interpretations of the constitution. So, we appear to agree that at least some of the complaints by conservatives about activist judges are unfounded. I agree with you concerning the Roe vs. Wade decisions. So, I'm not arguing against the concept that there are occasions where liberal justices are activists....overturning long established law because of their views. My arguement is more based on a later court: the Renquest court. For a span, they issued rulings that put the foundation of the federal government in question. An example of this is their ruling on Federal drug free zones around schools. In that decision, the called into question the extensive use of the interstate commerce clause by the Federal government over the last 75 or so years. This decision was a surpirse because this was not thought to be a very contentious issue. It's true that, as the court evolved, the votes for this faded away, but we were on the verge of a resetting of the federal/state government balance that...at the time....could have gone to the pre Civil War balance. Dan M. -------------------------------------------------------------------- mail2web - Check your email from the web at http://mail2web.com/ . _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
