tag:blogger.com,1999:blog-6329595.post1342498813557362154..comments2024-03-28T18:36:46.949-05:00Comments on Althouse: "If you can invent it" — judicial review — "you can do whatever you want with it."Ann Althousehttp://www.blogger.com/profile/01630636239933008807noreply@blogger.comBlogger33125tag:blogger.com,1999:blog-6329595.post-44512553451881248262009-10-17T08:26:49.543-05:002009-10-17T08:26:49.543-05:00"Americans will fight if you take away their ..."Americans will fight if you take away their rights."<br /><br />That is 100% as it should be. Americans are generally a proud, rowdy bunch who don't want to be bossed around by the government. Bravo!<br /><br />The only question is whether the fight will occur within the democratic process, via elections, lobbying, speeches and the rest. Or will the Supreme Court stop the fight, and decide who wins despite the democratic process, and firmly declare the winner based on five justices' empathies and antipathies? Enough of the latter!<br /><br />And if Justice Kennedy truly believes that an interpretation of the Constitution is completely implausible, his obligation is to vote against it until hell freezes over. Judges are only supposed to cave into stare decisis when there is room for plausible doubt, because the judicial oath is the Constitution rather than to the U.S. Reports. IMHO.Andrew Hymanhttps://www.blogger.com/profile/00460409924533415065noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-27069576496258454302009-10-16T21:46:30.484-05:002009-10-16T21:46:30.484-05:00"Americans will fight if you take away their ..."Americans will fight if you take away their rights."<br /><br />How about the right to universal healthcare, and the right to pay taxes to finance someone else's right to universal healthcare? The genius of Congress is it creates more rights instead of taking the rights away.ichttps://www.blogger.com/profile/09211087258286440952noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-75586402189079017912009-10-16T20:21:24.658-05:002009-10-16T20:21:24.658-05:00This was foretold: "It is a very dangerous th...This was foretold: "It is a very dangerous thing to vest in the same judge power to decide on the law, and also general powers in equity; for if the law restrain him, he is only to step into his shoes of equity, and give what judgment his reason or opinion may dictate; we have no precedents in this country, as yet, to regulate the divisions in equity as in Great Britain; equity, therefore, in the supreme court for many years will be mere discretion." <a href="http://weblog.theviewfromthecore.com/2009_09/ind_005822.html" rel="nofollow">Federal Farmer III, October 10, 1787</a>ELChttps://www.blogger.com/profile/09755716607466641949noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-14541524017868814822009-10-16T16:19:01.933-05:002009-10-16T16:19:01.933-05:00Brown v. Board was necessary and long overdue
No,...<i>Brown v. Board was necessary and long overdue</i><br /><br />No, the end of Jim Crow and "separate but equal" was long overdue, but the reasoning underlying Brown v. Board of Education -- that black kids can't learn and succeed unless they are surrounded by white kids -- was almost as insulting.<br /><br />What is LONG overdue is the adoption of Justice Harlan's dissent in Plessy --<br /><i>"in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. <b>Our Constitution is color-blind</b>, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."</i><br /><br />What is LONG overdue is the recognition in law that it is none of the government's damn business what color or race someone is.Bender Rhttps://www.blogger.com/profile/00089037605985975212noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-49621051316999546472009-10-16T16:11:39.124-05:002009-10-16T16:11:39.124-05:00The Constitution is a list of explicitly delegated...The Constitution is a list of explicitly delegated powers to the Congress, Presidency and Courts. Judicial review is NOT one of the listed poweres, so it is unconstitutional, period.<br /><br />It is not implicit, because NO Common Law country, especially the UK, permitted judicial review until recently, and then it was recognized as an innovation.<br /><br />Every time a judge exercises judicial review, he/she violates his/her oath of office and should be removed by the impeachment process.sykes.1https://www.blogger.com/profile/10954672321945289871noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-78282455453121547262009-10-16T15:53:17.742-05:002009-10-16T15:53:17.742-05:00I take your point, but the fact that Article Three...I take your point, but the fact that Article Three is so vague means that judicial restraint is essential. Brown v. Board was necessary and long overdue, but much that has followed has been truly damaging to the checks and balances of the Constitution.<br /><br />If Kennedy's point is valid, the court itself has undermined reverence for the law the judges expound by repeatedly overriding the peoples' will expressed through the legislature. The abortion cases haven't settled anything, but have created bitter divisions that have made the courts into a third political branch. Confirmation hearings are now political, no-holds-barred battles.ASThttps://www.blogger.com/profile/14591247136037620408noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-47639334087201899152009-10-16T14:56:54.708-05:002009-10-16T14:56:54.708-05:00"You stand behind a lectern, while you stand ..."You stand behind a lectern, while you stand on a podium."<br /><br />Unless, of course, you're standing behind a podium while standing on a lectern.<br /><br />paulidiggyhttps://www.blogger.com/profile/10805943108911395872noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-67266527883310550932009-10-16T14:17:34.379-05:002009-10-16T14:17:34.379-05:00This comment has been removed by the author.Anonymous Patriothttps://www.blogger.com/profile/13410533154506879975noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-23815700003336143432009-10-16T14:16:48.510-05:002009-10-16T14:16:48.510-05:00It is striking to me that the justices actually re...It is striking to me that the justices actually read their briefs unlike the Congress who can't be bothered to read the bills they pass in the middle of the night.Anonymous Patriothttps://www.blogger.com/profile/13410533154506879975noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-21728155421687148452009-10-16T12:48:32.640-05:002009-10-16T12:48:32.640-05:00I think a judge who believes that judicial review ...<i>I think a judge who believes that judicial review was invented might feel more inclined toward restraint, and a judge who thinks judicial review was inherent in the original Constitution might feel more inspired toward activism.<br /><br /></i>Sure, assuming a pleasingly modest judge, who fears being presumptuous. But if I'm making stuff up, why not make it up to my total satisfaction? That's why my dating profile shaves years off my age and pounds off my weight.former law studenthttps://www.blogger.com/profile/15196697206046544350noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-52015149210381269462009-10-16T12:16:28.334-05:002009-10-16T12:16:28.334-05:00Ann says she disagrees with Kennedy's comment ...Ann says she disagrees with Kennedy's comment about judicial review. I assume that the focus of the discussion was judicial review of federal statutes, since that presents the harder case.<br /><br />The invented/implicit distinction focuses on the origins of the judicial review principle. But where it originates strikes me as less critical in understanding whether in its operation it is activist or restrained than the substance of the principle itself. Is it a principle that enshrines the historic role of the English juidiciary (to say what the law is, while shaping it along the way), or instead the supremacy of the national gov't (the supreme law of the land, 'law' here being more textual), or the independence of the judiciary as the least dangerous branch in a tri-partite gov't (from the Declaration and a concern at the Constitutional Convention), or something else? The implicit/invented line won't help you pick among those or other alternatives. After all, the line between 'implicit' and 'invented' is at least as much in the eye of the beholder as it is in the words of any text. And you can just as easily invent a principle of judicial review that is more restrictive than whatever someone else may find implicit in a text that never mentions the concept. <br /><br />Rather than the 'implicit/invented' line, I think that the what is more important in determining whether judicial review is wielded in an activist or restrained manner turns on whatever principle of legitimacy is invoked to support it.Richard Dolanhttps://www.blogger.com/profile/12735773524374061429noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-27768567881715960742009-10-16T11:03:14.829-05:002009-10-16T11:03:14.829-05:00I always wondered what the function of the Supreme...I always wondered what the function of the Supreme Court would be nowadays in the modern era if, as a supposed fully-fledged co-equal branch of government, it didn't have the power of judicial review. It's hard to feature.<br /><br />And another thing that always bothered me are the facts in Marbury v Madison. Judicial review is the easiest thing to pull from the case. When I first read it I got side-tracked by the confounding roles of John Marshall as both an actor in the underlying case and then acting as the Chief Justice in deciding the case, and that the ultimate ruling seemed in contradiction to his earlier acts.<br /><br>G Jouberthttps://www.blogger.com/profile/00521745492112085630noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-88868099049006535952009-10-16T10:57:18.582-05:002009-10-16T10:57:18.582-05:00Why is everyone worried?
The government CARES for...Why is everyone worried?<br /><br />The government CARES for us. <br /><br />What could possibly go wrong?millerhttps://www.blogger.com/profile/06288790458928188846noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-47218057823047707172009-10-16T10:53:43.905-05:002009-10-16T10:53:43.905-05:00Ann said...
He just talked about how much he e...Ann said...<br /><br /><i> He just talked about how much he enjoys the work of judging.</i><br /><br />Why not? <br /><br />Isn't power the objective of power, not to mention the world's greatest aphrodisiac?edutcherhttps://www.blogger.com/profile/15589958656028023357noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-18701238588967320472009-10-16T10:53:02.363-05:002009-10-16T10:53:02.363-05:00Judicial power depends on the people's reveren...<i>Judicial power depends on the people's reverence and allegiance toward and for the law the judges expound</i>.<br /><br />And if half the country has soundly and thoroughly rejected the holiest of holy pronouncements from on high, invented out of whole cloth as an fiat exercise of "raw judicial power," and which has poisoned the judiciary and judicial selection process ever since, then Kennedy, et al. will simply shove it down their throats further and make them accept it, all the while patting himself on the back for how he brought unity and peace to the matter.Bender Rhttps://www.blogger.com/profile/00089037605985975212noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-33766670396567588812009-10-16T10:45:19.480-05:002009-10-16T10:45:19.480-05:00Indeed, Anthony Kennedy is not merely a walking &q...Indeed, Anthony Kennedy is not merely a walking "living Constitution" himself, he fancies himself a god!<br /><br /><i>"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."</i>Bender Rhttps://www.blogger.com/profile/00089037605985975212noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-7322448427125677522009-10-16T10:40:48.250-05:002009-10-16T10:40:48.250-05:00"You stand behind a lectern, while you stand ..."You stand behind a lectern, while you stand on a podium."<br /><br />I had to look it up!chuck b.https://www.blogger.com/profile/00882763861745236443noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-72388194200369772812009-10-16T10:40:05.345-05:002009-10-16T10:40:05.345-05:00Constitution??
Anthony Kennedy IS the Constitutio...Constitution??<br /><br />Anthony Kennedy IS the Constitution, damn it!Bender Rhttps://www.blogger.com/profile/00089037605985975212noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-8872475409218216682009-10-16T10:10:01.275-05:002009-10-16T10:10:01.275-05:00"The law is knowable, ascertainable."
E..."The law is knowable, ascertainable."<br /><br />Except, you know, in advance of finding out Kennedy's personal opinion.Stevenhttps://www.blogger.com/profile/05138730966226244399noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-16831927573763702392009-10-16T09:57:41.971-05:002009-10-16T09:57:41.971-05:00Nice Thucydides reference, Pogo!
AT what point di...Nice Thucydides reference, Pogo!<br /><br />AT what point did we stop referring to the "Founding Fathers" and start calling them "The Framers"?<br /><br />Despite being Dead White Men they can't be ignored so they will be de-gendered and (and de-raced) and called "Framers"?!?Jeff with one 'f'https://www.blogger.com/profile/05744612696537883583noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-51623872967453416962009-10-16T09:52:05.089-05:002009-10-16T09:52:05.089-05:00Maybe we should be looking for leitmotifs in his o...Maybe we should be looking for leitmotifs in his opinions.Scotthttps://www.blogger.com/profile/14341576498315327700noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-33633392253483746482009-10-16T09:50:29.801-05:002009-10-16T09:50:29.801-05:00What operas do they listen to?
I bet Kennedy list...What operas do they listen to?<br /><br />I bet Kennedy listens to Wagner. Götterdämmerung probably shakes the furniture in his office.Scotthttps://www.blogger.com/profile/14341576498315327700noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-11014425300757250862009-10-16T09:42:20.898-05:002009-10-16T09:42:20.898-05:00traditional guy scores a shack when he points out ...traditional guy scores a shack when he points out that Judicial review is nothing more than John Marshals own personal predilections sprung fully clothed and armored from his fertile, calculating (he knew full well what he was doing, which is why he didn't bother to tell Marbury to walk down the hall to the Court of Claims because he was in the wrong court--he WANTED the case in order to MAKE law) mind like Athena from the forehead of Zeus--a total farce, that, like the natives who believe in Witch Doctors, works only because the public is gullible enough to want it to.virgil xenophonhttps://www.blogger.com/profile/13509453343705968903noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-72154606986151836872009-10-16T09:40:46.718-05:002009-10-16T09:40:46.718-05:00Scalia makes more sense.
But they both love the...Scalia makes more sense. <br /><br />But they both love the opera don't they?Fred4Preshttps://www.blogger.com/profile/01574159710712259945noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-27378724003870122092009-10-16T09:13:28.546-05:002009-10-16T09:13:28.546-05:00"If you can invent it" — judicial review...<i>"If you can invent it" — judicial review — "you can do whatever you want with it."</i><br /><br />That quote is little more than a rewording of the familiar “Without God all things are permitted.”<br /><br />I don’t point that out to denigrate Justice Kennedy at all.<br /><br />It’s just that there is nothing new under the sun.Bissagehttps://www.blogger.com/profile/04439910009646381418noreply@blogger.com