The Courts, the Constitution and the Federalist papers

Can the legislature pass a law that would in effect nullify Roe v Wade? I was under the impression that it could not. A constitutional amendment would be necessary? I think Thomas is correct that Roe's intent was to afford more rights to the unborn as the baby became more and more viable. So how did we get from the intent of Roe v Wade to abortion on demand at any state of fetal development including partial birth abortion? Is that the result of activist courts?

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parados wrote:

I understand about precedent but why do some create laws and other don't? We have laws against murder and against jaywalking. Both are laws. The precedent in Miranda is certainly a bigger one than the ruling concerning the use of dogs to search a car stopped at a traffic stop but both create precedent. It is just that one is more universally applicable. What is the criteria for making it "landmark" creation of new law? Is that criteria objective? The problem I see with the "activist judge" and the "courts creating laws" argument is that it applies only to rulings that are controversial and disliked, a purely subjective standard.

Thank you for answering my question. Your position sounds reasonable. I also do not know the criteria for "landmark" decision. Perhaps it refers to establishing a novel legal principle or perhaps a decision is considered "landmark" if it is heavily relied upon in deciding subsequent court cases.

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Foxfyre wrote:

I think Thomas is correct that Roe's intent was to afford more rights to the unborn as the baby became more and more viable. So how did we get from the intent of Roe v Wade to abortion on demand at any state of fetal development including partial birth abortion? Is that the result of activist courts?

I didn't say Roe's intent was to afford more rights to the unborn in later stages of pregnancy. I said that's what you get when you assume that Blackstone correctly describes what the founders meant by the rights to life and liberty, and assume that this is what the fifth and fourteenth amendmends protect. As best I can tell, the Supreme Court, in its Roe v. Wade decision, isn't talking about embryo rights. It is talking about "a compelling state interest" in protecting the embryo. I am guessing, on listening to the court hearings about the case, that this is because Ms. Roe's counsel argued persuasively that the Texas laws in question didn't look like laws designed to protect embryos. They looked like laws designed to patronize mothers.

Without having looked at much of the relevant jurisprudence, I doubt that activist judges had much to do with what Roe came to stand for on both sides of the abortion debate. The one important case I know of where the Supreme Court revisited the decision, it came close to overruling it -- Planned Parenthood v. Casey (1992) . In the end, it produced a 5:4 majority that constrained the holdings in Roe but confirmed the core of the decision. So interms of symbolism, it seems more probable to me that the "if"s and "but"s in the Court's Roe v. Wade opinion were lost in the course of public debate. Forgetting about them made it easier for women's rights organizations to claim a constitutional blessing for increasingly radical demands, and it made it easier for conservatives to make the ruling look more evil than it really was. My guess is that both sides had a rhetorical incentive to forget the details, and so they did.

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Gouverneur Morris
If you ask a class of students "Who is considered to be the father of the Constitution?" most will answer "Thomas Jefferson." But they would be wrong. Actually, the substantive author of the Constitution was Gouverneur Morris.

In addition to the Federalist Papers, it is important to read Morris' writings and speeches to broaden your base of information.

BBB

Gouverneur Morris
Pennsylvania

Of French and English descent, Morris was born at Morrisania estate, in Westchester (present Bronx) County, NY, in 1752. His family was wealthy and enjoyed a long record of public service. His elder half-brother, Lewis, signed the Declaration of Independence.

Gouverneur was educated by private tutors and at a Huguenot school in New Rochelle. In early life, he lost a leg in a carriage accident. He attended King's College (later Columbia College and University) in New York City, graduating in 1768 at the age of 16. Three years later, after reading law in the city, he gained admission to the bar.

When the Revolution loomed on the horizon, Morris became interested in political affairs. Because of his conservatism, however, he at first feared the movement, which he believed would bring mob rule. Furthermore, some of his family and many of his friends were Loyalists. But, beginning in 1775, for some reason he sided with the Whigs. That same year, representing Westchester County, he took a seat in New York's Revolutionary provincial congress (1775-77). In 1776, when he also served in the militia, along with John Jay and Robert R. Livingston he drafted the first constitution of the state. Subsequently he joined its council of safety (1777).

In 1777-78 Morris sat in the legislature and in 1778-79 in the Continental Congress, where he numbered among the youngest and most brilliant members. During this period, he signed the Articles of Confederation and drafted instructions for Benjamin Franklin, in Paris, as well as those that provided a partial basis for the treaty ending the War for Independence. Morris was also a close friend of Washington and one of his strongest congressional supporters.

Defeated in his bid for reelection to Congress in 1779 because of the opposition of Gov. George Clinton's faction, Morris relocated to Philadelphia and resumed the practice of law. This temporarily removed him from the political scene, but in 1781 he resumed his public career when he became the principal assistant to Robert Morris, Superintendent of Finance for the United States, to whom he was unrelated. Gouverneur held this position for 4 years.

Morris emerged as one of the leading figures at the Constitutional Convention. His speeches, more frequent than those by anyone else, numbered 173. Although sometimes presented in a light vein, they were usually substantive. A strong advocate of nationalism and aristocratic rule, he served on many committees, including those on postponed matters and style, and stood in the thick of the decisionmaking process. Above all, it was apparently he who actually drafted the Constitution. Morris subsequently left public life for a time to devote his attention to business. Having purchased the family home from his half-brother, Lewis, he moved back to New York. Afterward, in 1789, Gouverneur joined in a business venture with Robert Morris, and traveled to France, where he witnessed the beginnings of the French Revolution.

Morris was to remain in Europe for about a decade. In 1790-91 he undertook a diplomatic mission to London to try to negotiate some of the outstanding problems between the United States and Great Britain. The mission failed, but in 1792 Washington appointed him as Minister to France, to replace Thomas Jefferson. Morris was recalled 2 years later but did not come home. Instead, he traveled extensively in Europe for more than 4 years, during which time he handled his complicated business affairs and contemplated the complex political situation.

Morris returned to the United States in 1799. The next year, he was elected to finish an unexpired term in the U.S. Senate. An ardent Federalist, he was defeated in his bid for reelection in 1802 and left office the following year.

Morris retired to a glittering life at Morrisania, where he had built a new residence. In 1809 he married Anne Cary (Carey) Randolph of Virginia, and they had one son. During his last years, he continued to speak out against the Democratic-Republicans and violently opposed the War of 1812. In the years 1810-13 he served as chairman of the Erie Canal Commission.

Morris died at Morrisania in 1816 at the age of 64 and was buried at St. Anne's Episcopal Churchyard, in the Bronx, New York City.
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GOUVERNEUR MORRIS
An Independent Life
By William H. Adams

An engrossing biography of one of the most colorful and least well-known of the founding fathers.

A plainspoken, racy patrician who distrusted democracy but opposed slavery and championed freedom for all minorities, an important player in the American Revolution, later an astute critic of the French Revolution, Gouverneur Morris remains an enigma among the founding generation. This comprehensive, engrossing biography tells his robust story, including his celebrated love affairs during his long stay in Europe.

Morris's public record is astonishing. One of the leading figures of the Constitutional Convention, he put the Constitution in its final version, including its opening Preamble. As Washington's first minister to Paris, he became America's most effective representative in France. A successful, international entrepreneur, he understood the dynamics of commerce in the modern world. Frankly cosmopolitan, he embraced city life as a creative center of civilization and had a central role in the building of the Erie Canal and in laying out the urban grid plan of Manhattan.

William Howard Adams describes Morris's many contributions, talents, sophistication, and wit, as well as his romantic liaisons, free habits, and free speech. He brings to life a fascinating man of great stature, a founding father who receives his due at last."This forgotten founder was as large and multifaceted as the Revolution itself. Marvelously idiosyncratic, he had a fiery imagination that went along with his unabashed taste for women. Alternately ambivalent and industrious, he was a cranky political genius.

William Howard Adams's biography is essential reading."--Andrew Burstein, author of The Passions of Andrew JacksonWilliam Howard Adams is also the author of The Paris Years of Thomas Jefferson, published by Yale University Press.

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My recollections of Morris is that he was instrumental in writing the first state constitution for New York, he was a Federalist himself, and he was a member of the constitutional convention. He didn't actually write the U.S. Constitution but was most likely the primary editor putting it together in its final form. How much personal influence he had on the content when compared to Madison, Jefferson, and some others is debatable, I think, as he was pretty pro-European. As I recall, he was one of the signers of the Constitution.

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Foxfyre wrote:

Can the legislature pass a law that would in effect nullify Roe v Wade? I was under the impression that it could not. A constitutional amendment would be necessary? I think Thomas is correct that Roe's intent was to afford more rights to the unborn as the baby became more and more viable. So how did we get from the intent of Roe v Wade to abortion on demand at any state of fetal development including partial birth abortion? Is that the result of activist courts?

Truthfully, Foxfyre . . . "abortion on demand" and "partial birth abortion" are catch-phrases of anti-abortion groups. The states retain considerable police power to regulate abortions and many states have enacted stringent informed consent requirements and mandatory waiting periods which make "abortion on demand" an impossibility. The states may constitutionally promote the preservation of potential life so long as state laws are not "unduly burdensome."

Abortion, no matter how you look at it, requires the removal of the fetus from the womb through the cervix. All methods of abortion, regardless of whether you call it a "Partial Birth Abortion" or something else, are horrifying.

See Stenberg v. Carhart
http://laws.findlaw.com/us/000/99-830.html

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The Constitution offers basic protection to a woman's right to choose whether to have an abortion. Roe v. Wade, 410 U. S. 113; Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833. Before fetal viability, a woman has a right to terminate her pregnancy, id., at 870 (joint opinion), and a state law is unconstitutional if it imposes on the woman's decision an "undue burden," i.e., if it has the purpose or effect of placing a substantial obstacle in the woman's path, id., at 877. Postviability, the State, in promoting its interest in the potentiality of human life, may regulate, and even proscribe, abortion except where "necessary, in appropriate medical judgment, for the preservation of the [mother's] life or health." E.g., id., at 879.

The Nebraska law at issue prohibits any "partial birth abortion" unless that procedure is necessary to save the mother's life. It defines "partial birth abortion" as a procedure in which the doctor "partially delivers vaginally a living unborn child before killing the . . . child," and defines the latter phrase to mean "intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the ... child and does kill the ... child." Violation of the law is a felony, and it provides for the automatic revocation of a convicted doctor's state license to practice medicine. Respondent Carhart, a Nebraska physician who performs abortions in a clinical setting, brought this suit seeking a declaration that the statute violates the Federal Constitution. The District Court held the statute unconstitutional. The Eighth Circuit affirmed.

Held: Nebraska's statute criminalizing the performance of "partial birth abortion[s]" violates the Federal Constitution, as interpreted in Casey and Roe. Pp. 3-27.

* * *

Because Nebraska law seeks to ban one method of aborting a pregnancy, we must describe and then discuss several different abortion procedures. Considering the fact that those procedures seek to terminate a potential human life, our discussion may seem clinically cold or callous to some, perhaps horrifying to others. There is no alternative way, however, to acquaint the reader with the technical distinctions among different abortion methods and related factual matters, upon which the outcome of this case depends. For that reason, drawing upon the findings of the trial court, underlying testimony, and related medical texts, we shall describe the relevant methods of performing abortions in technical detail.

I'm one of those people who find abortion horrifying. It doesn't matter what type of abortion that is performed to terminate the pregnancy because I find ALL methods horrifying regardless of the name given to the procedure. I could never do it. There are millions of women out there just like you and me . . . women who could never do it because the thought of abortion is horrifying.

But, I still understand that there are many other women who find themselves pregnant under unfortunate circumstances and THEY have to make the moral determination for themselves whether to terminate the pregnancy or carry the pregnancy to term.

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Debra writes

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But, I still understand that there are many other women who find themselves pregnant under unfortunate circumstances and THEY have to make the moral determination for themselves whether to terminate the pregnancy or carry the pregnancy to term.

Yes, that is why I was careful to say earlier that I do not presume to judge anyone faced with a choice like that. But you are saying that states or local communities could ban partial birth abortion now? If Congress bans it, will that hold up in the courts? What about court decisions requiring abortion protesters to stay so many feet/yards away from the clinic but impose no such restrictions on protesters protesting other things? What about parental notification? Can the courts override the parents' right to direct the medical care/surgical procedures for their minor children? The ACLU says yes.

It is all these things that give the impression of 'activist courts' to the rank and file out here and those of us who have not been trained in the finer points of the law. It seems to me that all the courts would need to do is rule on the law that already exists or just say that there is no law directing the courts in a specific issue and therefore it is not in their jurisdiction. They never seem to take that latter view, however. They always come up with some kind of ruling. And when they do, voila a new precedent is set and is cited as law forever after.

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The Courts don't have a choice. The states make laws regulating abortion. The subject matter is extremely emotional and volatile. The state enactments are tested in the Courts and the Courts have to apply the law to every fact situation that is presented.

The Courts continue to use the legal framework that has been firmly established. What is the state seeking to regulate? Is the state burdening or infringing upon a fundamental right to liberty / privacy? If so, does the state have a compelling interest? If so, are the means used necessary and narrowly tailored to serve that compelling interest?

The Supreme Court has recognized that an abortion that occurs within the first trimester is far safer to maternal health than carrying a child to term and giving birth. Most abortions (about 90 percent of all abortions) take place during the first trimester.

For abortions that take place after 12 weeks of gestation, the Supreme Court recognized that the state has a compelling interest in regulating abortion to ensure the health of the mother. Regardless of what method of abortion that is used, the result is always the same for the fetus. The fetus is torn apart and extracted from the woman's body. All methods of abortion are essentially repugnant to our sensibilities. But some forms of abortion are safer to the woman's health.

No matter how repugnant abortion is, the fact remains that the fetus is killed in the process. Does it really make any difference if the fetus is killed inside the womb and then extracted or is killed as it's being extracted from the woman's body through the cervix?

If you read the case, Stenberg v. Carhart, you will see that the Court ruled that the State's compelling interest in maternal health does not justify banning a method of abortion that can be performed with less risks to the mother's health than other methods.

Accordingly, laws that ban a certain method of abortion are not faring well. However, at the point of viability, the State's interest in protecting potential life becomes compelling. When the fetus becomes viable, the State may prohibit abortions except in cases to save the mother's life / health.

When it comes to protesting, you will see that the government allows the people the right to free speech . . . but "free speech zones" are often established. We see these zones at our political conventions and rallies and speaking engagements. We saw in the Schiavo case, a zone was established outside the hospice. So, it is nothing new for free speech zones to be established in order to balance the rights of protestors and the rights of others to enter buildings without feeling threatened, harassed, or intimidated.

Parental consent. The states may constitutionally require parental consent so long as a judicial bypass procedure is included in the law. If a teenager can demonstrate to a court that it's not in her best interest to obtain the consent of her parents to have an abortion, the court can waive that requirement.

The courts are always called upon to apply the law to every fact scenario presented, balance competing interests, and make decisions. That's why courts exist. The courts are just doing their jobs. They are not engaging in judicial activism.

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Thanks Deb, your comments made me think of something and let me see if I can widen the issue with a comment of my own. I may or may not be correct but we are here to learn.

Abortion is like many other issues. There is no clear line about where the right ends or begins. The courts are there to try to help make that line a little sharper. But at the same time courts are often reluctant to make sweeping rulings when a limited ruling concerning a single issue will work. I had mentioned Miranda and another case concerning rights of persons accused of crimes. That is another area where the line is grey, the rights of persons when it comes to police action. Society through its policing power and legislative action will always test the limits of where that line is when it comes to rights. My feeling is the test almost always comes from the conflict of one person's rights against another person's. (person can sometimes be a group)

Perhaps courts are as vague as possible on the line to prevent one person from gaining more rights than another based on precedent of a court ruling.

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parados,
I know of at least one example where the U.S. Supreme Court ruled on the most narrow grounds possible to avoid making a decision that would have much greater legal consequences. Last year's "Newdow" case dealt with whether "under God" in the pledge of allegiance represents unlawful coercion of religion when public schools require students to recite the pledge. The supreme court rejected Newdow's suit on the basis that Newdow did not have standing to represent his school-age daughter (his former wife has sole custody). The court's opinion specifically stated that it wanted to avoid addressing the "weighty constitutional issue" involved.

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parados wrote:

Thanks Deb, your comments made me think of something and let me see if I can widen the issue with a comment of my own. I may or may not be correct but we are here to learn.

Abortion is like many other issues. There is no clear line about where the right ends or begins. The courts are there to try to help make that line a little sharper. But at the same time courts are often reluctant to make sweeping rulings when a limited ruling concerning a single issue will work. I had mentioned Miranda and another case concerning rights of persons accused of crimes. That is another area where the line is grey, the rights of persons when it comes to police action. Society through its policing power and legislative action will always test the limits of where that line is when it comes to rights. My feeling is the test almost always comes from the conflict of one person's rights against another person's. (person can sometimes be a group)

Perhaps courts are as vague as possible on the line to prevent one person from gaining more rights than another based on precedent of a court ruling.

Courts are not allowed to issue advisory opinions. Courts are only allowed to decide the actual case or controversy that is presented.

Accordingly, the only issue before the Court in Roe v. Wade was whether the Texas statute that criminalized abortions was unconstitutional.

The Courts apply the same framework to all constitutional questions. The question is whether the statute infringes a fundamental right or is based on a suspect classification (e.g. race). If the answer to that question is YES, then the Court applies a strict scrutiny test.

An intermediate level of review will be applied to statutes that classify with respect to gender or illegitimacy.

For all other legislation, a rational basis test is applied. This is an extremely deferential test and the challenged statute will be upheld as constitutional so long as any rational basis can be discerned for its enactment.

There have been times in the past where the question presented to the Court has been twisted. In Roe v. Wade, it could have been argued that no person has a constitutional right to have an abortion. Some will ask: Where in the constitution does it say that a woman may abort her unborn child?

And this is why I harp on the issue of SUBSTANTIVE DUE PROCESS.

The Supremacy Clause in Article VI of the Constitution provides that the Constitution shall be the Supreme Law of the Land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. However, the judges in every state were NOT bound by the Constitution in many respects because the Constitution was a document that limited FEDERAL government. For instance, the First Amendment provided that CONGRESS shall make no law infringing freedom of speech, etc. The First Amendment was not a barrier to any state passing a law that infringed on freedom of speech.

After the civil war, the Constitution was amended and the Fourteenth Amendment was added to provide that a STATE shall make no law that deprives any person of life, liberty, or property without due process or deprives any person of equal protection under the laws. Most of the protections that the people have against federal government via the Bill of Rights have been incorporated via the Fourteenth Amendment to apply to the States. The concept of "liberty" that is embodied in the Fourteenth Amendment is given substance.

Of course, the Fourteenth Amendment does not say that a state shall pass no law that criminalizes abortion. The Fourteenth Amendment does not say that a state shall pass no law that deprives a woman of her liberty interests to be free from unreasonable governmental intrusion into her private decisions concerning reproduction unless the state has a compelling interest in doing so and the means used are necessary and narrowly tailored to serve that compelling interest. Nevertheless, liberty -- freedom from unreasonable government intrusions into one's life and privacy -- is a broad concept. The concept of liberty must be given SUBSTANCE within the context of the cases presented to the courts.

In the Lawrence v. Texas case, the Supreme Court acknowledged that it was wrong when it framed the constitutional issue in its previous case. In Bowers v. Hardwick, the Supreme Court said that there is no constitutional right to engage in sodomy. Fortunately, the Court recognized the error of its previous analysis and corrected the mistake. The Court recognized that the true interest involved was the liberty interest -- the right to be free of unreasonable government intrusions into one's life and PRIVACY. The right to privacy is implicit within our concepts of liberty. The question, therefore, is not whether people have the right to engage in sodomy, the question is whether GOVERNMENT has a compelling interest in criminalizing the conduct that occurs between two consenting adults in the privacy of their own home.

Accordingly, when a question is presented to the FEDERAL Courts concerning the constitutionality of a state law, the federal Courts must apply the Fourteenth Amendment and must give SUBSTANCE to the concept of liberty. And that's where many people fail to understand the application of fundamental law to state enactments. They fail to understand the substantive due process component of the Fourteenth Amendment. Many people erroneously think that a state can make any law it wants to make with respect to life, liberty, and property so long as the state provides PROCEDURAL due process -- notice and an opportunity to be heard in a time and manner appropriate to the interest involved concerning the application of the law to the person.

Although I was sidetracked, the courts can only decide the issue presented. After Roe v. Wade, the states understood CLEARLY that they could not criminalize abortions in the early stages of pregnancy. But, the States understood that they could still regulate abortions to serve their interests in maternal health. Accordingly, some states have required counseling and waiting periods for the woman who is contemplating an abortion to make sure that the woman has thought about her decision and is giving her informed consent to the procedure. And the courts will uphold these state regulations as constitutional so long as the requirements are not unduly burdensome -- meaning that the state has a reason for imposing the requirement other than to make an abortion more difficult to obtain.

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Debra writes

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Accordingly, when a question is presented to the FEDERAL Courts concerning the constitutionality of a state law, the federal Courts must apply the Fourteenth Amendment and must give SUBSTANCE to the concept of liberty.

I am still struggling with the entire concept of judicial activism. I have much apprecaited Debra's and others' educated opinions here and can appreciate that one person can conclude the the court is simply correctly interpreting the Constitution in their decisions, while the next person believes the court is creating new law (judicial activism) under the pretense of interpreting the Constitution.

For instance, the Supreme Court has not ruled the death penalty in any state but recently ruled that executiion of minors tried and convicted as adults is unconstitutional. The only rationale I can see for this decision is their personal convictions about this matter along with their observation that we are virtually the only industrialized country that was implementing such a practice. The Court did not rule it unconstitutional to try and convict minors as adults, however.

Regardless of one's personal convictions about this, what constitutional principle ould possibly support the doubnle standard?

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I know of the case but I'm not cognisant of the judicial reasoning. However I had a look at a few bits of info and it seems to me that where the Court spoke about "the evolving standards of decency that mark the progress of a maturing society". I would have thought the Court is doing exactly what the framers of the Constitution wanted.

I've read that it is a "living document". For me that means that while its essence is immutable its interpretation must be in the light of contemporary standards.

I'm sure the framers of the Constitution didn't intend for it to provide an ossified code of justice to their descendants.

If I'm right then the decision is not only just, it strengthens the idea of the benefits of a written Constitution as opposed to the mish-mash of ancient statutes, judicial decisions and negative views of rights that afflict common law jurisdictions such as my country where we have no written constitution and have to be pleased when our High Court finds inferred rights.

If you allege it's personal convictions that have driven this then you have to accept that it was the personal convictions of the minority that wanted to uphold the right of the states to execute juveniles. I prefer to think it was judicial thinking rather than personal predilection, on both sides.

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The idea that it is the courts that utilize any fluidity built into the Constitution is precisely what many of us object to, however. The courts are not representative of the people and I think the Federalists and the Constitution intended that it be the representatives of the people who make the laws consistent with changing culture biut with the checks and balances of the executive veto and judicial jurisprudence to be sure that our elected legislators do not run amuck. If the courts take on the responsibility of deciding what is and is not to be the law, what recourse do the people then have short of the lengthy and debilitating process of impeachment and, short of malfeasance, even that option isn't really available to us.

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Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.--Alexander Hamilton - Federalist 78

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And how then are the courts supposed to operate? Their job is to interpret the law (among other things). Why do they have that job? Because they are educated and experienced in the law and have sworn to uphold the Constitution. Who else has the education, knowledge and experience to properly interpret the Constitution?

The Courts are not representative of the people - and nor are they intended to be. America's courts are built on the common law tradition from England. The courts in common law jurisdictions aren't representative of the people and they're not representative of the elected government. They're there to do a job, that job is to (as I said, among other things) to interpret the law, the Constitution. They're not there to pander or be dictated-to. The law is not pliable even though it has to be interpreted. It is a constant. The law itself, your Constitution itself, is a bulwark of democracy. Perhaps that's why the Right is furious about it.

You're right about checks and balances. That's why the courts are being subject to Rightist calumny. They want control. Do you seriously want those checks and balances removed? Do you seriously want the executive and/or the legislature superior to the courts and by definition, the Constitution? The Constitution isn't just on parchment in the Archives, it's alive, it's out there, it's threading through every aspect of your life. It isn't owned by executive, legislature or court, it is above all of those. It serves the people and is master of none but nor will it be mastered.

Your quote from Hamilton supports my case.

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Yes, I want the executive branch and legislative branch to be superior to the courts in the matter of making law. My concern is that neither the Federalists nor those who signed off on the final Constitution considered it the prerogative or the jurisdiction of the courts to make new law. While most on this thread agree with that, there is room to honestly debate whether certain actions of the court constitute 'new law' or are in fact interpretation of existing and fundamental law. Hamilton intended that the courts have the least power of the three branches of government.

Also froM Federalist 78

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Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

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Foxfyre wrote:

I don't see how you can possibly draw that conclusion from what I said, Goodfielder. My concern is that neither the Federalists nor those who signed off on the final Constitution considered it the prerogative or the jurisdiction of the courts to make new law. While most on this thread agree with that, there is room to honestly debate whether certain actions of the court constitute 'new law' or are in fact interpretation of existing and fundamental law.

Also froM Federalist 78

Quote:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Well I drew that conclusion from what you wrote foxfyre.

Courts don't have a legislative power that's true. But they can make new law and they do. "Law" in this sense is more than a statute. A statute is the instrument by which a legislature makes law. By definition any statute when it is approved by all legislative/executive bodies is then law, a "new law". But the law isn't just included in written statutes. The common law is still a power and the common law is composed of (among other things) decisions by judges over many hundreds of years. The fact that they aren't written in statutes but may be found in the law reports doesn't make them any less law. They have effect, binding or peruasive, on courts through time, just as statute law will. A court can't make original law though, that I'll grant. A court can't provide for a new offence, for example. But it can and does and must "make law" . And the Supreme Court must make law by virtue of its ability to interpret the Constitution and have that interpretation followed as an authority. In that sense I am thinking of effect, not process.

The Federalist Papers quote again strengthens my position.

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So then Goodfielder, do you wish the courts to have equal power with the legislature and the executive branch in the matter of making law? You want those appointed for life to have the ability to declare null and void any action of Congress or any decress of a duly elected President? You want them to have the ability, free from any discipline, recourse, or possibility of losing their jobs, to be able to state whatever they think the law should be or say and there be nothing that we the people can do about it?

These are rhetorical questions, but the danger is clear to me. I do not want activist judges, activist courts, or corruption of the intended role of the court. Debra in her own informed and eloquent way has said she doesn't consider actions of the court to be activist. I am yet unconvinced and am becoming more and more concerned that the court is using its immunity from any form of legal retaliation to assume more and more of a dictatorial role in human affairs. I think that is a danger of which we should all be aware.

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Foxfyre wrote:

So then Goodfielder, do you wish the courts to have equal power with the legislature and the executive branch in the matter of making law? You want those appointed for life to have the ability to declare null and void any action of Congress or any decress of a duly elected President? You want them to have the ability, free from any discipline, recourse, or possibility of losing their jobs, to be able to state whatever they think the law should be or say and there be nothing that we the people can do about it?

Firstly it's all moot to me. I live in Australia. Now to answer your questions Foxfyre:

1. The current situation is just fine. The courts don't make new statutes but they do and have made new "law" in its broadest sense for hundreds of years in common law jurisdictions. The US has a common law jurisdiction (excepting I think Louisiana) so it follows that the power is there to do so. And my admittedly meagre knowledge of the Constitution (I'm learning a lot from these discussions though) tells me that the framers of the Constitution understood that and apparently - I will of course stand corrected - approved of it.
2. As to the ability to decree null and void any action of Congress or the President. Only the unconstitutional ones.
3. They do their job according to their oath/affirmation and according to any legislative restrictions. I know they can be removed from office if need be, there's no need for more than that. Their job is, among other things, to interpret the Constitution. Who else would you trust to do that? A politician???????

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These are rhetorical questions, but the danger is clear to me. I do not want activist judges, activist courts, or corruption of the intended role of the court. Debra in her own informed and eloquent way has said she doesn't consider actions of the court to be activist. I am yet unconvinced and am becoming more and more concerned that the court is using its immunity from any form of legal retaliation to assume more and more of a dictatorial role in human affairs. I think that is a danger of which we should all be aware.

And how long has the Supreme Court been able to interpret the Constitution? And how many times has the Supreme Court theatened your democracy? They are right now simply carrying out the role they were always bound to carry out. That is their intended role. It hasn't changed despite the threats of Republican demagogues who themselves are far greater threats to your democracy, the viabliity of your Republic, than the Supreme Court. The Court is holding the would-be dictators back and you are swallowing the line from those who seek untrammelled power.

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Well I disagree Goodfielder and I will not participate in making this a partisan issue or just another Republican bashing thread. But you have a good day.

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The Courts, the Constitution and the Federalist papers

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