From: ucda@toontown.uucp (Chris Andersen)
Subject: Re: The Third Branch (LONG)
Organization: The Department For Doing Departmental Things
Date: Wed, 30 Sep 1992 16:52:12 GMT

fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
>
>>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.

Thanks for restating what I consider to be the fundamental 
hypocrasy of those who advocated "original intent".  What it
really meant to many of its proponents was "apply original
intent where we think it is best and ignore it when it 
infringes on the things we want to do."

>>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.

Hmm, so I guess I am arguing for "original intent" after all eh? :-)

I guess what I am really arguing against is the hypocracy with which
the original intent argument is applied.  That and the use of this
argument to brow-beat unruly judges into submitting to the will of
the President and Congress.

As I mentioned before, I am NOT advocating a return to judicial activism.
However, I am advocating a more "active" role in government for the courts.

>>>..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.

Perhaps I didn't make myself clear enough.  Sorry.  This is an active
medium so ideas usually aren't present in a complete form.  This debate
has been useful in clearing out some of the fuzziness in my thinking.

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.

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

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