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GePap
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of the Big Apple
Nov 2001
time: 23:21
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Influence the law? I thought Scalia's whole point was that judges should not "influence the law", that only the legislature can do that....his hypocrasy continues.
As for your meta-point, I don;t think judges are seperate from the times they live in at all, not significantly. I look at all the "mayor" decisions, and the fact is that things were building up to them one way or another. In many ways, big Court decsions that get all the attention are inherently as much political, if not more, than legal.
Oh, and since when can Scalia "command a majority"?
Oh, and for the other posts- you read them? How nice, never would have known, seeing how you ignored the points made there about Scalia's hypocrasy.
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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:21
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quote:
All decisions can be overturned later. |
With much struggle, especially when a good number of future judges have agreed with the reasoning in the precedent. Not to mention the power of precedent itself.
quote:
And they get left behind later. |
If you think positivism and natural law have gotten 'left behind', you are nuts and totally off your rocker. There is reason, the Rehnquist philosophy is called "neo-federalism". It means it came back in vogue.
quote:
you don;t have answers |
No, I have the answers (and they are quite simple to answer), but it wouldn't matter, because you have obviously demonstrated no clue on Constitutional law or historical practices. It's like discussing sex with a 3 year old, you have no idea what the Hell is going on.
Hint: when Congress is said to have the power in the text, saying they have the power isn't deciding a 'living document'; and, two, perhaps you should try to under what 'the judicial power' means.
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GePap
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of the Big Apple
Nov 2001
time: 23:21
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quote:
Originally posted by Imran Siddiqui
With much struggle, especially when a good number of future judges have agreed with the reasoning in the precedent. Not to mention the power of precedent itself. |
How hard it is to overturn does not change the fact prescedent can and is overturned.
quote:
If you think positivism and natural law have gotten 'left behind', you are nuts and totally off your rocker. There is reason, the Rehnquist philosophy is called "neo-federalism". It means it came back in vogue. |
So? 1970's fashions come back too?
Neo-federalism is NOT federalism, anymore than neo-classical architecture is the same as actual classical architecture- past ideas are taken and modified to fit the current times. What does not change is the underlying popularity of any of a limited number of world views.
quote:
No, I have the answers (and they are quite simple to answer), but it wouldn't matter, because you have obviously demonstrated no clue on Constitutional law or historical practices. It's like discussing sex with a 3 year old, you have no idea what the Hell is going on. |
:yawn:. You need better comebacks.
quote:
Hint: when Congress is said to have the power in the text, saying they have the power isn't deciding a 'living document'; and, two, perhaps you should try to under what 'the judicial power' means. |
Decinding on an interpretationof what it says in the text, based on the norms of the day IS "living document".
But lets go back to the most activist decision of all times:
quote:
Marbury v. Madison (1803)
Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.
Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during "good behavior." Thus, when the opposing Republicans won the election of 1800, the Jeffersonians found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.
The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.
Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.
The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since. |
http://usinfo.state.gov/usa/infousa.../democrac/9.htm
If that is not an example of judicial activism, I don;t know what is- and to think, the very foundation of the powers of the court are built on judicial activism... Maybe Scalia would liek to return to a stricter interpretation of the actual document?
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17-03-2005 10:37
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