rb@cci632.UUCP (Rex Ballard) (10/03/86)
In article <752@oswego.UUCP> gacs3651@oswego.UUCP (Robert Knighton) writes: > > > > 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. The congress is even more restricted in it's legislative powers than that. Congress, for example, can't build roads for use by the general public, but they can "postal routes", and whatever means neccessary for the movement of defence forces. Without liberal interpretations of the constitution, we could not have Interstate Highways. The constitutional amendments stipulate the rights of citizens as individuals. Corporations, for purposes of constitutional rights are usually considered individual citizens as well. >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? :-)] No, in these three cases, we have a conflict in constitutional values or rights. In Brown vs. B.O.E. the question of legally mandated segregation was one of the individual's rights to benefits given by the government. The state is not required to educate anyone, but is not allowed to treat citizens differently based on race. In the O'hare case, the issue was one of privacy over the imposed excercise of religion. In the Roe vs. Wade case, we had a problem with the right to "privacy" (not actually the correct term) of mother, with the right of "due process" of an entity which did not fit the legal definititon of a United States Citizen. Since, under current law, you have to be born in the United States, or naturalized, the privacy of the mother took precedence. Many of the restrictions on congress do not apply to state and local governments. Unfortunately, all states, and most local governments recieve funding directly or indirectly from the federal government. In those situations where a decision only effects the federal funding of a state enacted law, states have the choice of finding another source of funding, or changing their laws. The Supreme Court often refers to the "intent of the framers of the constitution" when making their judgements. Historical records, precedent court cases, and writings of the framers are often used when two values, both supported by the constitution, are in conflict. > 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. There are laws, similar to those overturned by the supreme court, still on the books of several states. In the event that a decision is reversed, or there is a case so strong that the expense of arrest, conviction, and appeal all the way up to the supreme court is justified, a state may choose to enforce such a law. With Supreme Court Appeal an absolute certainty however, it very rarely happens. Without this awareness of reality on the part of prosecutors, we could easily see 50 appeals of the same law, each state's worded only slightly differently. >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. Precedent is used primarily to uphold the validity of an argument, not as the basis for a final decision. Precedents are also used to counter arguments. Sometimes, the court will cite precedents not mentioned in the case, to support the basis of their decision. >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. The Supreme Court, like any other branch of the government, is not above some political maneuvering. The purpose of the life terms is to make maneuvering a longer, more stabilized process. It takes about 20 years replace everyone on the Supreme Court. This is why, during otherwise liberal political environments, the Supreme Court has often been more conservative than many would wish, and during conservative environments, more liberal than many would wish. >They are also sworn to uphold the >constitution _as_it_stands_, not as they see it. No, they are sworn to uphold the constitution, period. There have been strict constructionists, and loose interpretationists on the bench. Fortunately neither side has ever had a clear majority on all issues, even for a short time. To make even the "as it stands" decision a clearly predictable one, it would be necessary to either remove the bill of rights, and most of the other amendments, or to add an "itemized list" of things which state and local governments can and cannot do. Government has three primary perposes. To protect one person from the abuses of another, to protect the community it governs from the abuses of another person or community, and to protect the individual from the abuses of itself and the community it governs. The constitution, with it's ammendments, is unique in it's ability to do this over an extended period of time. Even in this country, there have been abuses of the type described above, which were endorsed, and condoned, by the government. These abuses however, are most often checked only because the Supreme Court has the power that it does. > 'Nuff said. If you wish to express your opinion to me then E-Mail. Sorry, E-mail to your site from mine isn't real good right now.