In a message dated 7/3/2003 8:35:23 AM Eastern Standard Time, [EMAIL PROTECTED] writes:
But in a democracy (or a republic) shouldn't there be some mechanism for directly and democratically rejecting even the thoughtful judgments of the courts?
Bobby is assuming the answer to his question. We have been over this ground before, but it cannot be repeated enough. It all depends on what kind of democracy/republic is being instituted and the reasons for choosing that type of governing structure. Every democracy/republic is different, and suited to a different people operating from different base beliefs about the nature of people and the role of the government. "Democracy" by itself is too inchoate to drive any meaningful theory.
In addition, this assumes that the people only have an effect on governing institutions through direct governmental roles. The Framers constructed a system that keeps the people out of direct governing roles, but that institutes a communication system through the press and the freedom of speech. (we don't need to get into here whether this occurred simply through the enumerated powers, a la the Federalists, or the bill of rights, a la the anti-federalists). The vast majority of judges (all except the Justices) are doubly checked through appellate review and the press. The Justices are checked by operating in a fishbowl, which is not to say they operate from political motives (see my findlaw column today), but rather that they are constantly aware that whatever they do will be scrutinized from all sides. Bobby may think that is not enough, but it is more than his post described.
Marci
- Objections to the Political Safeguards Argument Robert Justin Lipkin
- Marci Hamilton
