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View Diary: The Supreme Court won't uphold Prop 8, but ... (207 comments)

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  •  They do have a whole lot of power (2+ / 0-)
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    JesseCW, MPociask

    They rule on the constitutionality of laws that are not clearly defined as constitutional or not constitutional, and thus require a ruling.

    Of course there must be a basis for the decision, but that basis may not be spelled out perfectly, as a buffoon like Scalia seems to think it should be.  If that were the case, why have justices at all?  Rulings should take all of five minutes and could be done by a junior clerk.

    •  There have to be some standards a Justice applies (2+ / 0-)
      Recommended by:
      Clem Yeobright, VClib

      when he/she analyzes a constitutional issue.  

      That's the ultimate constitutional debate -- what standards should the justices apply when interpreting the Constitution -- (1) the meaning attributed to it by the people who voted to put it in place (with the notion that if you want to change it, you should amend it) or (2) the meaning we would attribute to it, based on the times we live in, even if nobody ever voted for that meaning to be in the Constitution?

      Justices are always going to have to apply the Constitution to new facts and new situations.  The question is, what did the people put in the Constitution, and does that change over time from what the people intended to put in the Constitution?

      The first approach, when applied correctly, would put less power in the hands of the Justices than would the second.  

      •  Er... (1+ / 0-)
        Recommended by:
        The first approach, when applied correctly, would put less power in the hands of the Justices than would the second.
        Isn't that a bit like declaring that Communism, when applied correctly, inevitably creates a worker's paradise?
      •  The first approach has the same amount of power (0+ / 0-)

        Arguably, the first approach gives even MORE power to Supreme Court justices, if we treat them as wise sages who can reach back in time and read the minds of the people who... did what?  The drafters of the Constitution?  The people at the Constitutional Convention?  The voters of the the states that initially ratified the Constitution (but not the men who voted again, nor the mass of people who didn't vote on it at all?)

        The Constitution clearly belongs to "We, the People."  We, the People have the power to decide what it means - not amateur-hour historians like Scalia who project their own right wing fantasies onto what the founding fathers would have thought about any particular issue.

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