Professor
"...It anticipated the moment at which we find ourselves, and suggested that over-reliance by both parties on Supreme Court decisions to secure their goals has done very grave harm to American democracy..." DK
This is interesting.
I agree with you that the Court has too much power, but I add that so does the Executive, for similar reasons. But Dred Scott was not the turning point for judicial activism. In fact the opposite.
I will just quote my prior views. It should be noted that Bobbitt agrees with me re Dred Scott: Rightly decided, and hardly overreaching. It is consistent with your position on the ill advised Roe v Wade as overreaching.
Monday, February 8, 2021
REPOST RE DRED SCOTT MAJORITY OP RE MISSSOURI COMPROMISE UNCONST WAS DICTA
As Abraham Lincoln, of all people, knew this quite well indeed.
Professor
Interesting post as always."...The great exception was the Dred Scott decision of 1857, which, as I tried to show in a much earlier post, used an ahistorical reading of precedent to try to stop all regulation of slavery in the territories, and implied that slavery was legal all over the United States. The modern era of legislative jurisprudence, as one might call it, began after the Civil War, when conservative justices (and they were all conservative for much of the late 19th century) began using the 14th Amendment's guarantee of due process to outlaw state attempts to regulate their economy, including wages and hours legislation..." DK
Unfortunately, this passage has problems in various ways.
Just to take one of many ways:
The Missouri Compromise had already been repealed by Kansas Nebraska years before Dred Scott. I would call this legislative jurisprudence, rather than a jurisprudential activist great exception.
Anyway, I could go on for a long time here, but need to cut it short.
All the best
Terms search: Bush Gore, Citizens United, encroachment, substance procedure, special statutory procedures, jurisdiction over procedure, separation of powers.
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