dksuddeth

IMO, there is no better than Judge Napolitano.

http://reason.tv/video/show/178.html

I've read all three of his books and this is the model judge.

Is there anyone who would not want this ideology on the bench?

(not 56k friendly)

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dc_dux

I dont know much about him, but I would agree with his interpretation of the Constitution and individual rights....although I dont believe all "rights" are God-given as he has stated and written.

Where I have an absolute disagreement with him is in his assertion that some decisions of the USSC have been unconstitutional (I dont know which ones)....which is absurd because the Supreme Court is the ultimate interpreter of the Constitution, and unless it rules that something is unconstitutional, it isnt.

I have little patience for judges or anyone who suggests that their personal interpretation of the Constitution is the only "true and correct" interpretation.

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Tully Mars

That's sound a little like Nixon's augment that if the POTUS does then it's not illegal. Kind of but not quite. I do think their are times that the USSC could have and might in the future making ruling that violate the Constitution. The USSC is comprised of people. People are fallible , they make mistakes.

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dc_dux

I agree in theory and there are probably many examples of mistakes in the 200+ year history of the Court (Dred Scott for one), but until such mistakes are overturned by a future Court, they are constitutional....regardless of the interpretation of a FOX TV analyst.

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Tully Mars

Yeah I agree. That why I said it was kinda like Nixon, but not quite. You're right if the USSC says it constitutional then it is... until it's overturned.

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ratbastid

Well, the thing is, VERY little of the USSC has ever come before the Court. There might very well be laws on the books that are unconstitutional but have never been tested.

dksuddeth

If I understand you correctly, you're saying that as the 'ultimate interpreters' of the constitution, if the USSC ruled that the 13th and 14th amendment no longer applies to black people because (insert lame random reason here) then that would be constitutional?

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"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

dc_dux

What I say doesnt matter....what the Constitution says does matter.
If the USSC were to make such a ruling as your absurd example, based on an interpretation that those amendments exclude black people, the remedy would be to further amend the Constitution.

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dksuddeth

You do realize what kind of power that belief places in the judiciary, right? What you're saying is that the judiciary has the unmitigated authority to rewrite the constitution based on whatever decisions come down the pipe.

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"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

dc_dux

Again...its not whay I am saying...its what the Constitution says.

How do you interpret the powers of the judiciary as specified in Article III, secs. 1 and 2?

The checks and balances that prevent the judiciary's "unmitigated authority" you suggest is the power of Congress to enact a Constitutional amendment and send it to the states for ratification....or impeachment of the Justices.

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ratbastid

dk: I believe you have your hands on precisely why SCOTUS appointments are such a big deal. It's not for nothing that the politics of a SC Justice is so important in their nomination, ratification, and appointment. How the potential Justice is likely to interpret the Constitution is of primary importance because their word is the land's ultimate law.

roachboy

dc put his finger on the main problem that strict constructionists face.
i haven't seen any coherent argument against it--the only one i can see might turn on the word "under" in article 3 section 2.
what's good about highlighting this is that it reveals the simple fact of the matter about strict construction--it is a radical movement that dresses itself up as conservative, and is geared around fundamentally altering the nature of the american constitutional system in the name of protecting it.
strange business.

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Mojo_PeiPei

That comment seems odd RB.

Is it because Strict constructionists don't appeal, or rule in a progressive manner?

I can admit that with a 200+ year lapse time, the times and cirumcstances have changed, as such some adaptation is necessary.

But borrowing a page from DC_Dux, the constitution is what it is. I don't see how borrowing from foreign law, or inferring decisions from "implicit" wording or "spirit", or pulling decisions out of the air is any better or less altering.

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loquitur

Actually, what we need is honesty more than anything else: intellectual honesty. Once you get that, everything else falls into place.

MuadDib

On one hand it does place insane power in the hands of SCOTUS, but on the other that power is very limited. It's a ton of power because, presumptively, the Constitution gives the Justices ultimate authority to interpret the Constitution. I say presumptively because there are some very strong and sophisticated arguments contending that judicial review is not within the scope of the Court's power, but that is a discussion in and of itself. What is important to realize is that SCOTUS's power is extremely limited in its own right. The Court is bound by stare decisis and cannot just take a drastic turn of course through intellectual gymnastics, they have to back it up through precedent. Additionally, the Justices can be impeached in the legislature and can only be appointed by the executive. Perhaps most importantly is the traditional proposition that the Court has no army. It has no means of actually enforcing its pronouncements if the citizenry refuses to follow them (or at least other divisions of government refuse to enforce the pronouncement on the citizenry). Thus, the Court's "power" rests on the extremely precarious public notion of its legitimacy. This has, empirically, stayed the Court's hand on many occasions.

So, in answer to the earlier query, while, yes, the Court could theoretically rule that the 14th & 15th Amendments do not pertain to African Americans that would technically be the law. However, in reality this would never happen because there is absolutely no basis in precedent for such an action, it would certainly lead to impeachment, and, again most importantly, it would destroy the Court's legitimacy which is the only source of its power.

I also want to add that the structuralist approach to constitutional theory is no more legitimate than any other approach, even the extremely flighty moral approach taken by a few modern scholars. The fact is that the Constitution says the Court will exist and that it has original jurisdiction under some circumstance, but it no where states how the Court should interpret the Constitution when it has to. It's really quite ironic that the structuralist view hinges entirely on strictly interpreting the language of the Constitution as, presumably, intended as written, yet that very language cannot justify that stance over any other theory.

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Mojo_PeiPei

It's funny that the court gave itself the power of Judicial review in Marbury v. Madison.

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