"...Several new developments in this story of judicial power have marked the 21st century. Republican judges also adopted the idea that the Supreme Court could enshrine new, highly questionable views of the Constitution in law, and thereby overturn decades, or even more than a century, of precedent. Thus the court in Heller discovered (by a 5-4 vote) a new individual right to bear arms, and, in Citizens United, threw out a century of campaign finance reform (also by a 5-4 vote.) Then, another 5-4 vote declared gay marriage to be legal throughout the nation. That decision, of all the ones I have mentioned, strikes me as the most debatable. That is not because I think it is legally dubious. Once the court had ruled that sex between gay people was legal--as it surely must be--it was simple logic to give gay people the right to marry people with whom they wanted to have sex. But in this case, gay marriage was already legal in many states, and would have rapidly become legal in most of them. Even though holdouts like Mississippi would have remained for some time, the gain of resolving a contentious issue through the political process, for me, would have outweighed the desirability of establishing the right through the Constitution. As it turns out, though, the gay marriage decision seems to me to have had much less long-term political fallout than Roe v. Wade...." DK
What is unpolitical about the Judicial Branch?
Your argument is that states' legislative powers is the political process in contentious matters.
Why not, then, your theory of states' rights re federal legislative fiat, most especially, say, regarding Lincoln's and Radical Republicans' highly unconstitutional federal legislation during and after the Civil War, or say, the Civil Rights Act, in the 20th Century?
You don't like Dred Scott. Lincoln didn't either.
On your analysis above, however, why not wisely have left the slavery question to the states, as Douglas, Lincoln's adversary, had wisely tried to do, and as Dred Scott had confirmed?
The idea that this decision was based primarily on substantive due process is ridiculous.
Even someone like Bobbitt would laugh. Even he, a liberal, has admitted, backhandedly, that it was well reasoned:
Rumpole Bobbitt Dred Scott Decision Cross Examination
(See Rumpole, "The Heavy Brigade", blood stain expert, cross examination):
R: "And isn't 'not so far wrong' tantamount, in plain, or even colloquial English, or even in French which lives on double negatives, in rough translation, to 'right' or 'correct'?
B: "Yes, Mr Rumpole, maybe, under certain circumstances, in a certain idiom, in a certain language, it is."
R: "Well then, Professor, when you said that the decision in Dred Scott was 'not so far wrong', or something to that effect, can your statement be taken to mean therefore that the decision was in some important sense right, or even correct, rather than wrong, or even mostly wrong?"
B: "That seems a fair inference, as far as it goes, Mr Rumpole."
R: "Thank you for that, sir. You say as much at p 87 of Constitutional Fate, regarding Bickel's argument, 'Dred Scott does not, then, support Bickel's attack...', correct?
B: "Why, yes."
R: "Did your assessment of the decision have anything to do with the doctrine of substantive due process?"
B: "Why, no. That doctrine only became necessary, in my judgment, after the Civil War, as I discussed, at length, in Constitutional Fate."
R: "You mean it was not an obscure, questionable doctrine at the time of Dred Scott?"
B: "Oh, it was quite questionable, but wasn't used in Dred Scott really, but became absolutely necessary ethically after the Civil War."
R: "So, it has not been an obscure and questionable doctrine, as Professor Kaiser has claimed, in the 20th, or the 21st Centuries?"
B: " Of course not!"
For that matter, why put up, without a fight, regarding questionable Executive Orders and Offices as well, such as Lincoln's, while calling only the Supreme Court on the Constitutional carpet?
I think Johnson was following Lincoln's intentions; you don't. Why not call out Johnson, as the Radical Republicans also did by impeachment proceedings, but with your states' rights rationale? Answer: It doesn't make much sense against the large scale unconstitutionalities of Civil War law from all branches.
Simon Says Democracy:
Good radical legislation, good radical executive order, bad radical judicial decision.
If your argument is a veiled in personam argument against lawyers, personified by the judiciary, every branch of our government has always been filled with them.
Your argument is that states' legislative powers is the political process in contentious matters.
Why not, then, your theory of states' rights re federal legislative fiat, most especially, say, regarding Lincoln's and Radical Republicans' highly unconstitutional federal legislation during and after the Civil War, or say, the Civil Rights Act, in the 20th Century?
You don't like Dred Scott. Lincoln didn't either.
On your analysis above, however, why not wisely have left the slavery question to the states, as Douglas, Lincoln's adversary, had wisely tried to do, and as Dred Scott had confirmed?
The idea that this decision was based primarily on substantive due process is ridiculous.
Even someone like Bobbitt would laugh. Even he, a liberal, has admitted, backhandedly, that it was well reasoned:
Rumpole Bobbitt Dred Scott Decision Cross Examination
(See Rumpole, "The Heavy Brigade", blood stain expert, cross examination):
R: "And isn't 'not so far wrong' tantamount, in plain, or even colloquial English, or even in French which lives on double negatives, in rough translation, to 'right' or 'correct'?
B: "Yes, Mr Rumpole, maybe, under certain circumstances, in a certain idiom, in a certain language, it is."
R: "Well then, Professor, when you said that the decision in Dred Scott was 'not so far wrong', or something to that effect, can your statement be taken to mean therefore that the decision was in some important sense right, or even correct, rather than wrong, or even mostly wrong?"
B: "That seems a fair inference, as far as it goes, Mr Rumpole."
R: "Thank you for that, sir. You say as much at p 87 of Constitutional Fate, regarding Bickel's argument, 'Dred Scott does not, then, support Bickel's attack...', correct?
B: "Why, yes."
R: "Did your assessment of the decision have anything to do with the doctrine of substantive due process?"
B: "Why, no. That doctrine only became necessary, in my judgment, after the Civil War, as I discussed, at length, in Constitutional Fate."
R: "You mean it was not an obscure, questionable doctrine at the time of Dred Scott?"
B: "Oh, it was quite questionable, but wasn't used in Dred Scott really, but became absolutely necessary ethically after the Civil War."
R: "So, it has not been an obscure and questionable doctrine, as Professor Kaiser has claimed, in the 20th, or the 21st Centuries?"
B: " Of course not!"
For that matter, why put up, without a fight, regarding questionable Executive Orders and Offices as well, such as Lincoln's, while calling only the Supreme Court on the Constitutional carpet?
I think Johnson was following Lincoln's intentions; you don't. Why not call out Johnson, as the Radical Republicans also did by impeachment proceedings, but with your states' rights rationale? Answer: It doesn't make much sense against the large scale unconstitutionalities of Civil War law from all branches.
Simon Says Democracy:
Good radical legislation, good radical executive order, bad radical judicial decision.
If your argument is a veiled in personam argument against lawyers, personified by the judiciary, every branch of our government has always been filled with them.
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