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One of the key issues of our time is the role of the courts, and particularly the Supreme Court, in assessing, refining, defining, and creating law.

We must decide what role we want the courts to play, and elect representatives to government that will follow through.

Let's look first to the Constitution and its processes for guidence, and then decide if we need to amend it.

We are a representative democracy, essentially majority rule, with some caveats.

First, in choosing our representatives, we strive to elect people that agree with our positions, so that they will act as we would in our stead. Second, we want them to be circumspect, so they will take the time to come to the right decisions even when we go flying off the handle and demand heads on pikes. Third, we have the duty to hold new elections periodically, so we can replace them if they are not representing us accurately and appropriately. And fourth, we can recall them if their actions are so egregious that immediate action is necessary. These folks represent us in the determination of policy and law.

One of the components of our Constitution establishes the Supreme Court. Its duties were to adjudicate disputes between states, and between the states and the federal government. Marbury added judicial review to that task list. But we did not give the courts the duty of fashioning policy and law, that we reserved for the legislative branch.

One of the great characteristics of the Constitution is the balance between a representative democracy (majority rule) and the establishment of restraint of the power of the majority through civil rights. These rights are the subject of long and tortuous national debate, and are specific and explicit.

The balance hinges on a single concept: that only the majority can institute restraints on the power of the majority, thus popular voting to extend civil rights via the constitutional amendment process.

When the SCOTUS in Roe decided that they saw an implied penumbral right to privacy, they subverted this process. This decision should have been the subject of a national debate, and said rights should have been the result of public consensus. In taking this action to court may have arrived at the same end point that a national debate would, but instead they created precedent that has led to carnage of both our laws and our people, and that law contradicts other laws and policies on such topics as prostitution, organ donation, birthing for hire, drug use, suicide, contract law and limitations of all sorts, etc.

Originally posted to brahma on Tue Nov 01, 2005 at 08:40 AM PST.

Poll

Should the SCOTUS be empowered to create new minority rights?

23%4 votes
58%10 votes
17%3 votes

| 17 votes | Vote | Results

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Comment Preferences

  •  Listen (none)
    The judicial activism the right hates is not that they make law (don't know what that means) but that they don't rule in the favor of their political views.

    The Dmes are such eunuchs it is ridiculous.

    The right-wing courts strike down so many laws legislatures enact it is silly. why can't the legislature regulate automatic firearms. Or any firearms for that matter?

    If the people want no guns, they shuld be able to have no guns accoring to a humble judciary. But the right-wing judical activists aren't humble.

    I don't know why the Dems dont' go after Sam brownback. He obviously has a litmus test for judges. Brownback also wants judges to hold a certain political view. their judicial philosophy has to be consistent with Brownbacks political views. If they aren't then the judge is unqualified for the court.

    And why didn't Harriet Miers deserve a fair up ro down vote? why didn't Miers get a chance to set the record straight and go down to defeat us neccesary.

    We need Dems who actually believe what they are saying, not some party that gets people elected because they have monetary backing.

    •  Judicial activism is in the eye of the beholder (none)
      It is such subjective crap, and you are right that the Dems need to stop fearing their own shadow (and the soft-money fundraising machine).

      Grok Your World

      grok: to understand something in a deep and empathic way

      by Grok Your World on Tue Nov 01, 2005 at 09:34:48 AM PST

      [ Parent ]

    •  You're not just whistlin' Dixie there (none)
      I absolutely agree with your position on position verses money.
      Miers didn't get a vote because the President didn't have the guns to get confirmation.

      Make law; i.e. busing schemes, determining funding for education, deciding the minimum age of a criminal who may be educated overriding state law.

      As to guns, I'd say put the repeal of the 2nd Amendment to a vote of the people, and you'll see what the people want. It really has nothing to do with hunting or sports. The founders decided people needed to be able to organize and respond to gov't tyranny, just as they did. If the gov't decides that you need to give them all your money and assets so they can teach your children the state religion, you want to be able to put up a fight, don't you?

      I don't think litmus tests are something that should be brought up, Clinton said he had one. If it's bad then Dems will have to show they don't have one. What're NARAL and Soros going to say, or more importantly pay, then, to get your candidate elected?

  •  Your Poll Question is Loaded... (none)
    ...and some assumptions in your diary are faulty.

    First of all, the Supreme Court has never created "new minority rights."  What some people mistakenly refer to as "new" rights are actually recognition of rights that have long existed in the Constitution but were either 1) never enforced or 2) willfully denied by Courts, Congress and states in spite of clear Constitutional language that granted such rights.

    What most people refer to as "special rights" for minorties is nothing more than enforcement of the 14th Amendment to the Constitution which was ratified in 1868.

    The balance hinges on a single concept: that only the majority can institute restraints on the power of the majority, thus popular voting to extend civil rights via the constitutional amendment process.

    Your concept is incorrect because we have a Constitution that was originally written and contains amendments passed in the aftermath of a Civil War that guarantee minority rights and restraints on the majority.  Those rights and restraints were specifically written such that they would withstand opposition by the popular majority.

    •  That's the point exactly (none)
      The majority chose to enact limitations on its own capacity for majority rule, just as in the BoR.

      I was dialoging about the penumbral right to privacy identified in Roe that is implied. My position is that rights are and should be explicit, not implied. If we had done so in response to Roe, we would not be having this debate now. There is no explicit right to privacy, perhaps we ought to create one.

      My poll is intended to call out the Roe ruling, where the court found new rights, and to gauge opinion on whether the Congress should review the court's opinions. I'm certainly not the first one to bring it up.

      •  Justice Ginsburg Raised The Same Point.... (none)
        ...in that I believe she has been quoted as saying that Roe v. Wade halted a legislative approach to liberalizing abortion laws that may have been less contentious than the Court's ruling.  
         
        •  Agreeing, sort of (none)
          I'm not sure that legislation, rather than constitutional amendment would have solved the problem for long, but at least it would have clarified the issue and allowed for public comment, debate, and revision.
  •  When is it "activism"?..... (none)
    ...when it gives conservatives power to strike down laws they don't agree with? ("Just righting a wrong from former activists", they bloviate) Maybe it's when Poppy's SCOTUS appointeees "interpret" the Constitution in such as way as to decide the Presidency for Chimpy? ("Just making sure every vote is counted correctly", they say).   As with all conservative reasonings, there is a veneer of logic and legitimacy thinly disguising a cheap and rotten core of hypocricy, meaness, evil, greed and power.  The reality of their cry against activist judges is that conservatives judges can be as activist as they want because it strengthens conservative hegemony, but progressive activitism is always (and thank God for it) a threat to their evil and hypocricy.
    •  It sounds like... (none)
      you believe all "progressive" activism is good and all conservative activism is bad. If that's the truth then the issue isn't activism, it's legislating through the courts that which can't be legislated democratically, just what republicans accuse democrats of. Surely that's not your position.

      My question is, should the court alter the meaning or intent of legislation? I'm of the opinion that the courts should do no such thing, their options should be to adjudicate on the facts and arguments, or throw it back, lock, stock and barrel as unconstitutional, never the twixt shall meet. The in-between stuff should be left to the legislatures and by extension to you and me and the other voters.

      •  I believe hypocricy stinks........ (none)
        ...whether by libs or cons.  It particularly stinks when activism in performed in the name of being non-activist, particularly in the frantic and futile pursit to get back to a mythical time and place when "everything was right", though even cons know in their heart it wasn't.
        •  I think the term of art is (none)
          reactionary, for folks wanting to take the status back to a previous condition, and activist for wanting to move to a new condition.

          At some point the law becomes so well settled and agreed upon that it is accepted by friend and foe alike, and retreating from that could be considered "activist". I don't think that abortion/privacy rights falls into this category, as their seems to still be some controversy surrounding the issue.

          Somes conservatives would claim that the idyllic perspective of environmental activists falls into that mythical time and place scenario and are similarly frustrated.

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