From: ucda@toontown.uucp (Chris Andersen)
Subject: Re: The Third Branch (LONG)
Organization: The Department For Doing Departmental Things
Date: Fri, 2 Oct 1992 15:51:02 GMT

fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
>
>>Hmm, so I guess I am arguing for "original intent" after all eh? :-)
>
>I think what you are arguing for is called "Constitutional absolutism"
>(e.g. directly applying the provisions of the Constitution, regardless
>of the "modern context" or other excuses to ignore uncomfortable
>restrictions in the Constitution.) 

Technically perhaps.  But I don't believe a rigorous application of
ideals to real life situations is always a realistic proposition.
It will usually lead to chaos.

>>I still think my original point, that the courts are becoming apathetic
>>and that this is a danger to our constitutional system, is correct.  But
>>I think I now have a more clear idea of what it would mean to reverse this
>>trend.
>
>The question is, could the Court survive open warfare with the rest of
>the government? If they actually apply the Constitution, they would 
>have to rule most of the federal government unconstitutional. The
>President and Congress would almost certainly refuse to comply with
>such rulings. 

Yes, but they'd probably have to come up with some justification for
ignoring the ruling.  The best way they could do that would be to
pass amendments which provide a sound basis for the government
systems which they wish to retain.  I would have no objections to
this in principle (though I reserve the right to object to some of
the individual amendments).  It would certainly be a more honest
approach to government.

>Public opinion would probably not pressure them to accept the Court's
>rulings: The Court would be saying, in effect, "We've been lying for
>the past 50 years, but now we want to be honest and take away almost
>all the federal benifits you have been used to your entire life."
>I doubt this would be very popular, nor would the people demand the
>President and Congress submit to such rulings...
>
>Which leaves the real problem of how the Court could (probably
>subtly and gradually) actually apply the Constitution.

I'm a realist as well as an idealist.  I would prefer a more honest
form of government, but I'm not so naive as to believe that this is
a goal which can be achieved any time soon and not without a lot
of pain.

Perhaps the best, and least painful, approach would be to encourage an
atmosphere of judicial honesty.  This atmosphere could eventually result
in a court system that, slowly at first, would take the more "active"
role that I am encouraging.

The first task is to encourage honesty and responsibility in those who
are selected as jurists.  The next is to build up over a period of 
several years a case history of judicial rulings on various government
programs.  These would eventually result in rulings on the very fundamental
basis for the existance of those programs, which, since many can't pass
constitutional muster, would have to be overruled until such time as
the Congress and the President agree to negotiate a more honest form
of government.

It is my hope that by the time this occurs the "idea" of a more honest
form of government will have taken over and the eventual radical changes
would be far more palatable.

Unfortunately I'm a bit of a pesimist when it comes to believing that
humans have the capacity to make radical changes over a long-term period.
It took over 50 years to build up the system we have today.  It could
take that long just to tear it down.  I'm not so sure if we have the
patience and forsight to achieve this goal.

It may be that in the end the only way to bring about radical change is
in a rapid fashion.  Even though this would inevitably lead to a period
of sustained chaos.

-- 
Chris Andersen (..!uunet!sequent!toontown!chris)

"...the only thing worse than being hurt is being bored." -- Daniel Mocsny