From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: The Third Branch (LONG)
Organization: University of Colorado, Boulder
Date: Wed, 30 Sep 1992 01:44:22 GMT

In article <1992Sep28.190823.1797@toontown.uucp> ucda@toontown.uucp (Chris Andersen) writes:
>Of course it probably never occured to them just how big a country 
>America would become.  Did any of them forsee the ultimate extent of
>the expansion into the west?  Did any of them forsee the possibility
>that America would become the strongest country in the world?

I think the framers did forsee the future size of the nation: Jefferson
supported the expedition by Lewis and Clarke, because he was sure the
Pacific Northwest would be important to the country. The Oregon Territory
was settled in the 1810s. During the debates over ratification of the
Constitution, the expected rapid growth of the population (and how well
the Constitution could deal with it) were mentioned on several occasions.
However, I doubt they expected the United States to become a world power
In fact, many of the framers were strongly against foreign political 
"entanglemnts."

>However, the current method of balancing seems to be to pack the courts
>with judges who take an apathetic view tworad enforcing laws: if they
>can't make a clear judgement based precisely on the law as written, then
>they will just shut up and let the President and Congress dictate how
>things should be.

This is, essentially, the attitude of "judicial restraint", the
doctorine that became popular during the 1930s (Roosevelt's 
appointments to the Court may have had something to do with this...)
I'm as unhappy with this as I am with judicial activism: Both are
founded on the idea that Court can't possibly make unbaised 
interpertations of the Constitution itself, and therefore they
shouldn't even try. Judicial restraint supports inaction, while 
activism supports applying vague, subjective "fundamental 
principles" of the Constitution.

>Exactly.  But I continue to feel that the whole "original intent"
>argument is really just a snow job being perpetrated by those whose
>real intent is to turn the courts into a rubber stamp for executive
>(and legislative) action.  

It has been used this was, but that doesn't (shouldn't) discredit
original intent and an absolute application of the Constitution.
Specifically, such "advocates" of original intent as Judge Bork
apply the concept to the first eigth Amendments, and take a very
narrow interpertation of them. However, the same principles are
not applied to the Article One, Section Eight powers of the 
government (which would very narrowly restrict the government's
ability to infringe on rights), and the catch-all provisions of
the Ninth and Tenth Amendment. If you apply "original intent" 
equally to all parts of the Constitution, the result would be
reducing, not expanding the government's powers.

>But if the court becomes nothing more than a rubber stamp then how is that
>any better then the President and Congress simply ignoring their
>decisions?  In either case a vital check on the powers of the other
>branches is effectively eliminated.

It isn't: That's another failure of judicial restraint.

>>However, you are also misunderstanding a major feature of the Constitution:
>>The Tenth Amendment very clearly limits the federal government to those
>>powers granted by the Constitution. So, as a general rule, a law is
>>unconstitutional _unless_ the Constitution grants such a power. In 
>>the case of ambiguity, the burden of proof is on the government; in the
>>absence such proof the law is unconstitutional. 

>This is perhaps one of the clearest examples of how the present courts
>DON'T exercise their power:  the tenth amendment, as you say, clearly
>limits the government to the specific powers outlined in the Constitution.
>Yet the government today constantly oversteps those powers (though they
>try to justify it with various constitutional loopholes such as the
>commerce clause).  

To me, this sounds like an argument _for_ applying the originally
intended meaning of the Tenth Amendment.

>So where is the courts in all of this mess?  Shouldn't they be basically
>saying that much of the present government is inherently unconstitutional?
>After all, doesn't the doctrine of "original intent" virtually DEMAND that
>they do so?

I think so...

>After all, the President is sworn to uphold the Constitution and the
>court has ruled that the Constitution is being violated.  If the
>President then does not go forth to rectify this situation isn't
>he therefore in violation of his oath?  Isn't he therefore eligible for
>impeachment?

Not unless Congress wants (impeachment is a purely political process,
and has little to do with real offenses.) The President could always
claim he disagreed with the Court, and that he _is_ sticking to
his sword oath instead of violating it by accepting an incorrect
ruling by the Court. Generally, he couldn't get away with this,
since public reaction would make sure he lost the next election.

>>..So yes, I am arguing that there are times when NON-elected officials should
>>step in and bring about change in the system...

>>...Therefore, the judiciary has the power to interpert and apply the
>>Constitution, but not to "step in and bring about change[s]" in it.

>Where have I argued that the courts should step in and bring about
>change?

Perhaps I misunderstood.

                                                Frank Crary
                                                CU Boulder
Newsgroups: alt.civil-liberty,alt.politics.usa.constitution