From: cramer@optilink.COM (Clayton Cramer)
Newsgroups: misc.legal
Subject: Re: Judicial Power = "Create" Law? Founders Said Yes.
Date: 22 Jan 93 18:34:40 GMT
Distribution: usa
Organization: Optilink Corporation, Petaluma, CA

In article <1993Jan22.025140.16080@midway.uchicago.edu>, thf2@ellis.uchicago.edu (Ted Frank) writes:
> I disagree that the only alternative to original intent is a Constitution
> that depends on the result of the last election.
> 
> 1) Stare decisis.  See, for example, Planned Parenthood v Casey.  A
>    blatant attempt to stack the Court to reach a particular result failed,
>    with Reagan/Bush not even winning a majority of their own appointees.  

Except that stare decisis has historically been the ENEMY of liberals,
and support for it has been what distinguished liberals from
conservatives throughout this century.  Remember the trouble that
the Supreme Court got into for taking this seriously in the 1930s?

> 2) Judges aren't elected.  They're appointed for life.  

And of course, they are appointed by a President who is utterly
unaffected by election results.  At best, life appointment slows
down the process of rewriting the Constitution.

> 3) Even in terms of "activism," there *are* standards of judicial
>    interpretation -- no one would argue, for example, that the 
>    Constitutional provision that the president must be 35 years of
>    age should be interpreted as "the President must be mature" or
>    "the President must be 2/3 as old as the average life expectancy
>    of the country" (even though both of those, BTW, are plausible
>    interpretations under 'original intent').

Yet throughout the history of this country, "right of the people to
keep and bear arms" has been interpreted radically differently.
In the last few years, liberal judges have taken a view that this
essentially means nothing at all -- unlike in the last century,
where judges engaged in semantic games about what "arms" were
protected, but usually admitted that the protected arms could be
carried.

> 5) Constitutional doctrines survive because they work, regardless of
>    ideology.  Instances where Supreme Court justices agree far outnumber

Work for WHO?  For the Big Government sorts, who would be overjoyed
at having the government given unlimited authority to run the lives
of individuals.  That's not what was intended, at least for the
Federal Government.

> 6) There's no evidence that original intent doctrine would produce
>    the desired certainty of results.  A quick check of Scalia's opinions
>    demonstrates that a majority of his statutory interpretations get
>    overruled by Congress -- hardly the sign of an effective doctrine
>    at construing intent.
> -- 
> ted frank                     | thf2@ellis.uchicago.edu 

Are you serious?  That doesn't mean that Scalia's opinions are wrong
about original intent (though that is a possibility) -- it may just
show that the Congress is simply unconcerned about original intent.
-- 
Clayton E. Cramer {uunet,pyramid}!optilink!cramer  My opinions, all mine!
"When freedom destroys order, order will destroy freedom." -- Eric Hoffer
Not a goal, just a statement of reality.
Newsgroups: misc.legal,talk.politics.misc