"Joseph E. Olson" <[EMAIL PROTECTED]> wrote: > Unfortunately, it reduces the "constitutional" rights subject to it to > merely trivial bumps in the road to legislative abolishment. I doubt > most citizens understand how large a portion of the federal > "constitution" has no limiting effect except on certifiably psychotic > legislators. An empty right is no right at all. > > Why would anyone fight a revolutionary war in which thousands died and > devote years to crafting a WRITTEN constitution if in the end it only > limited the schemes of psychotics? I never understood how so-called > constitutional lawyers could just silently accept this. I suppose > that's why the first amendment (which has teeth) is where the action is > in law journal articles.
The Framers had a generally high opinion of the state governments and their ability to make good decisions. Their skepticism of the federal government was not because they regarded republican forms of government with distrust, but because they regarded a large and distant government with distrust. While people like Madison were well aware of the potential for majority abuse of minority rights, it seems that he was a bit more farseeing than most. For this reason, since the legislature is the most direct expression of the popular will, the legislature is assumed to be competent to make decisions unless they are clearly wrong. Giving the judiciary authority to overturn the legislature in questionable circumstances is effectively making the judiciary another legislative body--and at the federal level, an unelected one. Examine the arguments in Lochner v. New York (1905). Justice Field makes some good arguments in his dissent for why judges should not assume that the state legislature is incompetent or dishonest in passing a law. Then, read Justice Field's dissent in Plessy v. Ferguson (1896) where he essentially makes the exact opposite argument about Louisiana's reason for adopting the law mandating segregation of railroad cars. Field trusts the legislature when he likes the law that they pass, but not when he dislikes the law that they pass. It bugs me that all a legislature has to do is say the magic words "public health and safety" to use the state's police powers to pass all sorts of absurd laws. Unless the judges can demonstrate beyond a shadow of a doubt that the claim is false (it's not being done for public health and safety, but to force Chinese to pay fines instead of going to San Francisco County Jail), or a clear violation of a constitutional right, the people's representatives are presumed to be competent. My choice is rule by jackasses (democracy) or jackals (judges representing an arrogant political elite); the jackasses often can be educated; the jackals are a lost cause. Clayton E. Cramer [EMAIL PROTECTED] http://www.claytoncramer.com Being a citizen of the Republic is not a spectator sport.
