eyal@wisdom.BITNET (08/05/86)
In message <12226107001.23.MCGREW@RED.RUTGERS.EDU>, Keith F. Lynch writes: >2) Try to get a constitutional amendment. The Constitution is what > the Court has to follow. The Court doesn't really have all that > much power. If there was an amendment saying that people have to > wear green hats on Tuesdays, the Court would have to live with > that, they couldn't overrule it. > > Good thing this court was not around during the Lincoln era, eh? > > Well, slavery was perfectly legal where states did not have laws >against it. Until the 13th amendment was added to the Constitution. >And it really wasn't up to the Court. The Dred Scott decision is >ridiculed today, but it was the only decision the Court could have >come to at the time, given the Constitution as it existed. > The Supreme Court does NOT have the power to eliminate BAD laws. >It has the power to eliminate UNCONSTITUTIONAL laws. Not the same >thing at all. Well, that's not true. There are many cases in which the court's interpretation of what is or is not constitutional depends on the ideology of the judge. The constitution contains several general statements guaranteeing individual rights; such statements can indeed be used to eliminate bad laws (if a bad law is one that infringes on individual rights). One obvious example is the ninth amendment: "the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people". Historically, very few court decisions refer to this amendment; but if judges referred to it more, and interpreted it according to its original intent as a general protection of individual rights, then many laws violating individual rights would have been eliminated. This amendment could have been used to make slavery illegal right from the start, and it could certainly have been used to reverse the Dred Scott decision. Another important (and historically more influential) example is the statement, in the fifth amendment, that no person shall be "deprived of life, liberty, or property, without due process of law". What does it mean to be "deprived of property?" Should we regard laws such as rent control, occupational licensing, or minimum wages - which restrict people in the use of their property - as depriving them of their property? If so, then this deprivation is clearly without due process of law, and is therefore unconstitutional, and these laws can be eliminated by the courts. This is known as the "substantive due process" interpretation; it was applied in most relevant decisions up to the New Deal, and a good case can be made (and is made, for example, by Bernard Siegan in his book "Economic Liberties and the Constitution") that this was the original intent of the statement. But today, as we all know, it is interpreted quite differently. In recent years, we are witnessing a lively debate between the conservative, Reagan-appointed judges and the older, liberal judges, about the doctrine of "judicial restraint", i.e., about whether the courts should play an active role in protecting rights or allow congress and the administration a free hand. But both sides in the debate are really obscuring the issue, by package-dealing two distinct principles. I quote from an editorial in Barron's National Business and Financial Weekly, November 25, 1985 (by the way, the editorials in Barron's, written by Dr. David Kelley, are an excellent source of timely, well-reasoned political commentary from a consistently pro-individual-rights point of view): 'The philosophy of judicial restraint actually contains two principles. One is the "jurisprudence of original intent" - the idea that judges should be bound by the literal language of the constitution and the intent of the framers. The other is the doctrine of judicial restraint itself: judges should defer wherever possible to the executive and legislative branches ... in fact the principles are distinct; indeed, they are incompatible. .... The objection to the liberal activists in the courts is not their excessive zeal for individual rights, but their tendency to create bogus new "rights", which, like bad money, are driving out the real ones. ... In the circumstances, what the country needs is a judiciary that will be MORE active in protecting rights. Judicial restraint will make it harder, not easier, to trim the government back to something resembling the vision of the framers'. Eyal Mozes BITNET: eyal@wisdom CSNET and ARPA: eyal%wisdom.bitnet@wiscvm.ARPA UUCP: ...!ihnp4!talcott!WISDOM!eyal -------