Scalia's Originalism versus Breyer's Pragmatism

[Kanamori]

Maybe, are we decided that autocracy is the way to go?

No, I am no Autocrat.

I read through the reply to my post, but was basically baffled by most of what I read. This comment above explains somewhat better what I think you are about. What it appears you are about is the establishment of a Fourth Branch of government that is not Legislative or Judicial, but has power over all ultimate questions regarding society. In many systems this is called a dictatorship.

Perhaps, rather than making gross exaggerations, you could point to specific things. Because, up until now, things have been descriptive and related to each other's questions and statements. There is yet another distinction: regardless of what conclusion I favor for the problem -- I thought I was pretty clear that they ought to have have strong ties tot he people and be responsible to them anyways -- you have left my pointing to the problem untouched. Remember, I only need one point and the status quo is kaput.

I don't understand your distain for popular sovereignty where governance and responsibility for that governance is held in common by the citizenry.

It is difficult to take such accusations in stride.

[Pindar]

Kanamori,

I'm not trying for excess here. I am truly baffled in trying to come to terms with what your actual view is. You seem to want a final arbiter of law. Such a position would be superior to all other branches of government. You reject the SC holding this position. You reject the Legislature. I assume you reject the Executive. You seem to have rejected my view that the people themselves hold this position. So what is left? Whatever the place holder ends up being, I would think it will have to deal with charges of autocracy.

Maybe if I explain my own view again that would help clarify your own. You know I reject Judicial Review as un-Constitutional and demagogic. I support the original format as I understand it laid out in the Constitution. This is: the Legislature is the primary vehicle for creation of law. It holds this position because it is most reflective of the will of the citizenry and responsive to it. If the Legislature decides on a law that runs contrary to the nation's legal impulse then the people could place direct pressure on the Legislature to change it. This can be done through lobby groups, demonstrations and actual elections. Now I guess your question would be: what about oppressed minorities? Minorities, by definition, are always threatened by the majority and ultimately subject to it. The Constitution lays out various parameters to guide law and determine standard boundaries, but that is still subject to majority understanding. Let me give you two examples: slavery and polygamy. Slavery despite running counter to the base egalitarian impulse of the law was actually enshrined into the Constitution and remained that way until passage of the 15th Amendment in 1870. Polygamy: despite the free exercise of religion clause and the right of free association, polygamy was rejected in the Reynolds case in 1878. It has remained that way to the present because most people find polygamy repugnant. Are either of these examples of injustice? For the minorities involved that would certainly be the view. There are a whole host minorities that can claim oppression: gays for example. Sometimes these groups succeed in swaying the majority to support their cause, other times they don't. The salient feature remains that the people themselves as a collective body should be the ones to decide just what those parameters entail.

[Kanamori]

Then the Bill of Rights was a mistake that complicated things, if the Constitution is only meant to guide the workings of our government.

[Pindar]

Then the Bill of Rights was a mistake that complicated things, if the Constitution is only meant to guide the workings of our government.

As you know the Bill of Rights was not original to the Constitution, but I think both us would argee its addition was a good thing: not the least of reasons being it lays out terms that can be appealed to when there is government overreach. Even so, its addition did nothing for either of the two examples I gave earlier.

[Kanamori]

Pindar, you have made it clear: the notions I had of our founding have been shattered. I was romantisized by the idea that I had those "certain unalienable rights" no matter how many people said I didn't.

[Pindar]

Pindar, you have made it clear: the notions I had of our founding have been shattered. I was romantisized by the idea that I had those "certain unalienable rights" no matter how many people said I didn't.

Ahh, I see. There is a basic tension in rights discourse. There are two standard ways to approach the subject: rights as natural law and political exercise. Natural law is the older model. Its force is based upon a theological position. Unalienable rights gain their force irrespective of government sanction because God is the ultimate arbiter of justice and the law. This is what the Founding Fathers gave as a base justification for their rebellion against their lawful king and what Martin Luther King Jr. appealed to to justify civil disobedience.

Now the obvious problem is that a secular government is hard put to it when it comes to making religious appeal as the basis for law. This is why the other model developed. Political exercise appeals see rights as the sole product of political will. They come to be and pass away dependent on the decisions of the polity itself. You can see this tension in the history of the Court and American Law. As people adopt more and more of a moral minimalism regarding law it becomes more and more difficult to make appeals to natural law. I haven't argued a natural law view here because it carries no force with a secular mind. I hope that helps.

[GodsPetMonkey]

Roman law was not void of moral appeal. Quite the contrary. While natural law is properly attributed to St. Thomas it actually has a precursor in Stoic thought. One can easily take note of it in Cicero's works even while he was acting as a jurist.

My point was concerned with the form not the content of jurisprudence in the Anglo-American Tradition (I made no reference to inquisitorial models: bloody French). Roman law was not systemic. Neither was/is Common Law.

The reason I put moral in inverted commas is because such moral judgements were still product of the judicators personal whim. The liberal shift in the 18thC (which, for those with out an education in legal history, shifted it all to focus a lot more on individual rights and property-centric decisions) was meant to stop this, of course, judges are humans, and the experiment failed (has anything really changed?). Again the CLS provides a good critique, but utterly fails when it comes to solutions.

Judicial Review is one of the direct causes of the Civil War. Read the Dred Scott Decision 1857.

I think it did not help the situation, but it did not directly cause it. Think of what would have happened with out judicial review? The federal government would still have tried to walk all over the states, I'm not going to claim it had anything to do with slavery or freedom, it was purely about power, and who should have it. If anything, Dred Scott slightly hastened the inevitable, but it falls far short of any kind of smoking gun.
If the SC took one side over the other, so be it, it would surely bolster that side, but the other was not likely to stand down. The courts were merely another tool in the pre war power struggle.