gacs3651@oswego.UUCP (Robert Knighton) (09/25/86)
This is being posted to both net.abortion and net.legal. I believe that it is of interest to all concerned. Recently I read an interesting piece written by a lawyer about the constitutional legality of the decisions of the supreme court becoming the law of the land. Given as evidence were three decisions handed down since 1957. These are: 1. Brown v. Board of Education (1957) [Mandatory desegregation], 2. The Madeline Murray O'Hare case (1963) [No prayer in schools], 3. Roe v. Wade (1973) [Legalized abortions on demand]. Now I am intrigued by this information. It is true that the consti- tution gave legislative powers only to congress, and (*in my opinion*) the judiciary does _not_ have the power to legislate. They only have the power, yes the grave responsibility, to uphold the integrity of the constitution. This is supposed to make any change in the constitutional rights of citizens very hard to do. Requiring the full process of ammendment. In these three cases we have nine men effectively ammending the constitution by precedent, and that is not constitutional. [But who is going to tell them? :-)] Now if these decisions ARE invalid as the law of the land, then we need to act and make sure that they are either upheld or withdrawn from public law. As far as I can tell (and I'm no attorney) precedent is useful in civil or criminal cases, but not in questions of constitutionality. I am a citizen of this country and proud of it. I just can't sit here and let the balance of power be upset by the supreme court. They are supposed to be above politics because of their life terms. They are also sworn to uphold the constitution _as_it_stands_, not as they see it. 'Nuff said. If you wish to express your opinion to me then E-Mail. Although, I would like to see the debates that will undoubtably arise. The article I referred to may be found in _Americans_against_Abortion_ Vol. 1 No. 2. ------------------------------------------------------------------------------- !ihnp4!oswego!gacs3651 (Robert Knighton) !warrior/ (Any Ideas for a better sig. file?) ( How about a more accurate path?) Genuine mail and flames both gleefully accepted. It's boring around here. -------------------------------------------------------------------------------
rha@bunker.UUCP (Robert H. Averack) (09/30/86)
In article <752@oswego.UUCP> gacs3651@oswego.UUCP (Robert Knighton) writes: > > Now I am intrigued by this information. It is true that the consti- >tution gave legislative powers only to congress, and (*in my opinion*) the >judiciary does _not_ have the power to legislate. They only have the power, >yes the grave responsibility, to uphold the integrity of the constitution. >This is supposed to make any change in the constitutional rights of citizens >very hard to do. Requiring the full process of ammendment. In these three >cases we have nine men effectively ammending the constitution by precedent, >and that is not constitutional. [But who is going to tell them? :-)] > > Now if these decisions ARE invalid as the law of the land, then we >need to act and make sure that they are either upheld or withdrawn from >public law. As far as I can tell (and I'm no attorney) precedent is useful >in civil or criminal cases, but not in questions of constitutionality. I am >a citizen of this country and proud of it. I just can't sit here and let >the balance of power be upset by the supreme court. They are supposed to be >above politics because of their life terms. They are also sworn to uphold the >constitution _as_it_stands_, not as they see it. Bob, for brevity, I yanked out the specific cases, but for clarity, you referred to School Desegregation, Abortion and School Prayer. Now, wouldn't you agree that the Judiciary is operating exactly as it has for 200-years? In other words, our Judiciary has ALWAYS been charged with the responsibility of upholding the Constitution via its own verbiage, prior precedent and their own judgement. Why does it seem that the system only breaks down for you when it involves issues you're concerned with? As far as the Supreme Court being *above politics*, BOLDERDASH! Come on, Bob, be serious. Surely you remember FDR's attempt to expand the court to 11 so he could more easily pass his programs. Surely you are aware of the furor surrounding our newest Chief A-hole, uh, I mean Justice (maybe I should have said Fuhrer instead of furor :-) . If you disagree with the current stand on the three issues stated above, then argue those issues. But please, don't single them out as *invalid* due to use of Judicial Precedence. -- ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! (Bob Averack @ Bunker Ramo/Olivetti) {decvax!, ittatc!, philabs!} ! ! ! ! ## "Okay, you workstations, start USENET: bunker!rha ! ! #OO# singing....." UUCP: bunker!/usr/spool ! ! ###### /uucppublic/rha ! ! ##\/## "This LAN is your LAN, OFFLINE: 35 Nutmeg Dr. ! ! ###### this LAN is my LAN..." Trumbull, CT 06611 ! ! L L ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !
myers@uwmacc.UUCP (Jeff Myers) (09/30/86)
> Recently I read an interesting piece written by a lawyer about the > constitutional legality of the decisions of the supreme court becoming the > law of the land. Given as evidence were three decisions handed down since > 1957. These are: > > 1. Brown v. Board of Education (1957) [Mandatory desegregation], > 2. The Madeline Murray O'Hare case (1963) [No prayer in schools], > 3. Roe v. Wade (1973) [Legalized abortions on demand]. Roe v. Wade is also a landmark privacy issue case, resting on other precedent. > > Now I am intrigued by this information. It is true that the consti- > tution gave legislative powers only to congress, and (*in my opinion*) the > judiciary does _not_ have the power to legislate. If you've ever taken a look at a statute or a constitution, you would realize that they are not written in a crystal clear fashion -- in order to implement law, it must be INTERPRETED. That is what courts do. Considering balance of power issues, the federal govt is just a blur anyway. Executive agencies legislate thru federal regulations; the legislature regulates the war powers of the commander in chief; the courts do legislate in a sense thru their interpretations of law. It is a very real question where to draw the line, but the Nuevo Right talks like it's an on-again off-again problem...it's not that simple. Judgement is by definition interpretation, and hence in a very real since is legislation. Laws are so much mulch until interpreted by courts. > As far as I can tell (and I'm no attorney) precedent is useful > in civil or criminal cases, but not in questions of constitutionality. I am > a citizen of this country and proud of it. I just can't sit here and let > the balance of power be upset by the supreme court. They are supposed to be > above politics because of their life terms. They are also sworn to uphold the > constitution _as_it_stands_, not as they see it. > > !ihnp4!oswego!gacs3651 (Robert Knighton) Precedent is precedent, until overruled by the courts themselves, or by statute. Man/Woman is a political animal; judges are human; hence judges are political. No amount of ranting that they are not allowed to interpret law is going to change that. -- Jeff Myers The views above may or may not University of Wisconsin-Madison reflect the views of any other Madison Academic Computing Center person or group at UW-Madison. ARPA: myers@unix.macc.wisc.edu UUCP: ..!{harvard,ucbvax,allegra,topaz,akgua,ihnp4,seismo}!uwvax!uwmacc!myers BitNet: MYERS at WISCMACC
ekwok@mipos3.UUCP (Edward C. Kwok) (09/30/86)
In article <752@oswego.UUCP> gacs3651@oswego.UUCP (Robert Knighton) writes: > > Recently I read an interesting piece written by a lawyer about the >constitutional legality of the decisions of the supreme court becoming the >law of the land. Given as evidence were three decisions handed down since >1957. These are: > > 1. Brown v. Board of Education (1957) [Mandatory desegregation], > 2. The Madeline Murray O'Hare case (1963) [No prayer in schools], > 3. Roe v. Wade (1973) [Legalized abortions on demand]. > > Now if these decisions ARE invalid as the law of the land, then we >need to act and make sure that they are either upheld or withdrawn from >public law. As far as I can tell (and I'm no attorney) precedent is useful >in civil or criminal cases, but not in questions of constitutionality. I am >a citizen of this country and proud of it. I just can't sit here and let Justice John Marshall, some time very early in the history of the union, declared that it was the duty of the court to declare "what the law is". That is, the only laws that are certified to be constitutional are those "created" by the supreme court. The court, of course, interprets the constitution which is the supreme law of the land. It's interpretation is by definition legal, and is final until the court changes it's mind. The court respects its own decisions to a certain extent, the doctrine pf staris decisis (Sp?), and does not change its mind too often. That's probably why Roe is still the law of the land. -- _____________ DISCLAIMER: I do hereby declare that I possess neither the expertise, qualification nor authority to practise law, medicine, surgery, dentistry, accounting, veterinary medicine, or any such profession normally requiring extensive training and licensing. When I speak on matters or express opinions normally reserved for such persons in the course of the practice of their profession, I do not speak with competence. No person, born and unborn, should rely and act upon opinions expressed above. He/She do so at his/her own risk. I do speak with dubious authority on matters of Electrical Engineering, late T'ang dynasty poetic forms, a cat's right to self-determination, and Computer Science.
rhorn@infinet.UUCP (Rob Horn) (10/03/86)
In article <201@mipos3.UUCP> ekwok@mipos3.UUCP (Edward C. Kwok) writes: >In article <752@oswego.UUCP> gacs3651@oswego.UUCP (Robert Knighton) writes: >> Recently I read an interesting piece written by a lawyer about the >>constitutional legality of the decisions of the supreme court becoming the >>law of the land. > >Justice John Marshall, some time very early in the history of the union, Marbury v. Madison, 1803 - where the notion that the Court could rule on the constitutionality of a law was introduced. Very controversial at the time, and the debate included many of the writers of the Constitution. (The outcome of the debate should be obvious.) Other directly relevant cases are: United States v. Burr, 1807 McCulloch v. Maryland, 1816 Trustees of Dartmouth College v. Woodward, 1819 Read some histories of the Court and you will get a much better appreciation for the various issues involved and how the current system evolved. -- Rob Horn UUCP: ...{decvax, seismo!harvard}!wanginst!infinet!rhorn Snail: Infinet, 40 High St., North Andover, MA
moranw@unioncs.UUCP (William Moran) (10/10/86)
Sorry about this.