At 09:37 PM 2/5/2002 -0800, Tim May wrote: >On Tuesday, February 5, 2002, at 02:43 PM, Black Unicorn wrote: > >>>-----Original Message----- >>>From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On >>>Behalf Of Jim Choate >>>Sent: Tuesday, February 05, 2002 4:25 PM >>>To: [EMAIL PROTECTED] >>>Subject: Re: What Kind Of Government...... >>> >>> >>>On Tue, 5 Feb 2002, Ed Stone wrote: >>> >>>>application of the Sullivan precedent, which states that the Fifth >>>>Amendment will never justify a complete failure to file a return, >>>>invalidates the Fifth Amendment defense. E. g., United States >>>v. Irwin, 561 >>> >>>Where is Congress or the Courts given the authority to invalidate any of a >>>citizens rights? The decision as to what is and is not a valid defence >>>rests in one place and one place only. >>> >>>The jury. >>> >>>These sorts of laws violate the 1st, 4th, 5th, 6th, 7th, 8th, 9th, and >>>10th. >> >>Don't forget the 2nd and 3rd as well as the 11th through 27th. (18th >>notwithstanding).
I was having trouble understanding the thought constructs that these judges use to arrive at their application and interpretation of the constitutional issues until I came across a copy of a 1995 treatise by Larry Lessig, "Translating Federalism: United States v Lopez". Larry explains how a deterioration in the level of understanding of constitutional principles by the average American citizen, from our founding to the present day, was reflected in a consequent deterioration in the fidelity to those principles in federal court decisions. This deterioration hasn't been a straight line phenomenon but a meandering back and forth. There is much more complexity and nuance in the court's interpretation of the constitution in light of the writings of the framers than I was aware. He identifies two constructs "originalism" and "textualism" and the irregular swing between these two interpretation poles by successive Supreme Courts, especially surrounding the Commerce and especially the Necessary and Proper Clauses. The problems caused by this meandering and the increasingly expansive reading of federal power, culminating in Wickard, has left little of state and individual rights. Larry offers some suggested directions for curing the current inability of the courts to settle on a consistent construction in adjudicating these cases. Larry's paper its not on-line that I know, but if any on the list want a copy I'll be happy to send them the .pdf steve
