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- Xref: sparky misc.legal:23166 alt.society.civil-liberty:7497 alt.politics.usa.constitution:1545
- Newsgroups: misc.legal,alt.society.civil-liberty,alt.politics.usa.constitution
- Path: sparky!uunet!psinntp!cmcl2!panix!mls
- From: mls@panix.com (Michael Siemon)
- Subject: Re: Judicial Power = "Create" Law? Founders Said Yes.
- Message-ID: <C1AJrC.M2L@panix.com>
- Summary: integration
- Organization: Panix Public Access Internet & Unix, NYC
- References: <1993Jan21.040853.28616@ucsu.Colorado.EDU> <1993Jan21.060822.6290@midway.uchicago.edu> <1jna9jINNdn4@darkstar.UCSC.EDU>
- Distribution: usa
- Date: Sat, 23 Jan 1993 05:11:35 GMT
- Lines: 58
-
- In article <1jna9jINNdn4@darkstar.UCSC.EDU> spencer@cats.ucsc.edu (Michael Spencer) writes:
- >
- >Ted Frank makes the best case against "original intent" jurisprudence
- >that I have seen in a long time. But he doesn't really come to grips
- >with the problem that the alternative is that the Constitution
- >depends on the result of the last election.
-
- >Wnat to give it a try, Ted?
-
- The objection is nonsensical (and has been already refuted by an earlier
- posting). Even at the extreme in which one assumes that judicial inter-
- pretation is arbitrary (and why should one assume any such thing?), it
- would only be the case that the Constitution "depends" on the accumulated
- opinions of judges appointed by the winners of ALL the elections since
- the adoption of the Constitution. While such a "summation" may have its
- own problems, a restriction of causation to *current* political fashion
- is NOT one of them.
-
- Judicial appointments by one administration (or sequence of ideologically
- sympatico administrations) have EVIDENT influence on the sorts of things
- one reads in the papers as current court news. But it is equally evident
- that the ideology of recent appointees is NEVER the only influence, and
- it is determinative only if external politics has allowed the ideological
- filter to completely swamp all other consequences of earlier causes. One
- need only look at the history of Roe v. Wade for the last 20 years to see
- that "the Constitution depends on the result of the last election" is
- patently false. The Reagan/Bush SC (and lower court) appointments could
- not move constitutional law to where THEY wanted it (though it moved in
- their direction), and a Clinton administration will not even BEGIN to have
- an effect on this until voices he appoints enter into the discourse --
- and then they will be spotty until/unless many years and judgeships pass
- into history, in dialogue with all earlier jurisprudence.
-
- And no political considerations along such lines, however relevant, can
- completely abrogate a legal tradition that *intends* independence from
- the political pursuits of executive or legislative branches. Human affairs
- are always a bit messy, so tidy conceptualizations aren't going to be
- adequate to describe legal reality. That reality includes notice that
- law, and its necessary interpretation by courts, has a history that is
- influenced but not "controlled" by contemporary politics.
-
- Live with it; that's what "law" MEANS in human reality. Ted's remarks
- about the framers simply show that they were intelligent observers of
- the world they inherited and restructured. Ideologues who wish to turn
- a blind eye to the operations of justice in a human world will pervert
- all statments of insightful 18th century observers into bad arguments
- for the ideological goal, this bizarre political attempt to constrain
- courts to do exactly and only what some critic WANTS them to do, while
- avoiding everyting else. The goal is nonsense. Courts *intend* justice;
- they are limited by their understanding of law and life, but they are
- also free to apply their intent wherever they can see an application in
- a case at law, or equity. If they do NOT have that power, they are NOT
- courts -- and if they do, their decisions *are* law.
- --
- Michael L. Siemon "We honour founders of these starving cities
- mls@panix.com Whose honour is the image of our sorrow ...
- They built by rivers and at night the water
- Running past the windows comforted their sorrow."
-