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Strict Constructionism and the Supreme Court
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| NYCTrancefan |
Well with the recent resignation of Justice O'Connor from the Supreme Court, the term strict constructionist has come back into the vernacular of every conservative who appears on the air now. From abortion, affirmative action to gay rights, the agenda is set. Let me start with affirmative action, I am black and it's one subject that has always pissed me off, If I was on the court I would vote against it being upheld in any instance because of the fact that I would like to believe that we are at a point in society where it isn't something that is needed. While its original intent was to help get minorities into areas that were never open to them, in 2005 I would hope that America has become better than that, so that can be struck down for all I care.
Conservatives lay claim, some anyway, that Roe v. Wade will not be overturned overnight. That is obviously not the point, now is it.This is the real issue in the craw of the religous right and it is an issue that wil be the wake up call for Americans who take anything for granted about their own personal life in today's society. I hope that Bush elects a hard conservative who has a stance that runs counter to supporting a woman's right to choose in her own personal life. There's a point where with control of the Executive, Legislative and Judiciary conservatives just might bite off more than they can chew.
I heard John Warner from Virginia assert on the air, when speaking of precedents in the Supreme Court that the Supreme Court had in Plessy v. Ferguson set a precedent that separate but equal was constitutional, but it took 60 years to change that ruling. The problem with that is there was never such a concept as separate but equal in real terms in American society. It was the continuation of a system that had already existed so that ruling was never a precedent in the first place, after all who could quanitfy what was separate equality. Many of the systems before and after that ruling still were in place well up to Brown v. Board of Education in 1954.
Since I am sure there are a few strict constructionists supporters in here, exactly what does that term suppose to imply in practical, real life terms in a modern society. No affirmative action, which I support, No or limited gay rights, I support a partnership and benefits for them similar to marraige but not termed that and still haven't made up my mind on adoption. As for the caveat abortion, I use to be against it but now believe in the right of a woman to choose after taking a women's studies course in College, it opened up my eyes to the struggle that women committed themselves to from the early to mid 20th century for their rights.
My point is Strict Constructionism in a modern society when the words were written over 200 years ago leaves a lot to be desired. There are core principles that can be represented over time but strict constructionism cannot tackle an issue such as abortion when the matter didn't even exist in said time. Therefore it is merely another name for appointing deeply conservative judges to the courts. Law is in itself something which is open to interpretation so the linkage ot strict constructionism and law just doesn't make sense to me. What is Strict Constructionism suppose to represent in 2005 from 1789. I look forward to a smart, informative discussion.
For all you strict constructionists this should make for some insightful reading, and from all places Fox News http://www.foxnews.com/story/0,2933,161422,00.html
Makes one wonder doesn't it when this administration speaks of wanting a strict constructionist on the bench, someone's lending lipservice to an agenda. |
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| Capitalizt |
I think it means that you don't invent new laws, rights, or "entitlements" that are not authorized by the Constitution.
In short, you keep government Constitutionally limited...and make major changes through the ammendment process, rather than through judicial tyranny. |
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| NYCTrancefan |
| quote: | Originally posted by Capitalizt
I think it means that you don't invent new laws, rights, or "entitlements" that are not authorized by the Constitution.
In short, you keep government Constitutionally limited...and make major changes through the ammendment process, rather than through judicial tyranny. |
Certainly the Constitution doesn't say give minorities and women the right to affirmative action or give women the rights to abortion or gays the right to marry and adopt. That is obvious, however strict constructionism fails to demonstrate a reflection of the changing society over time.
Lets say that strict constructionism is to be taken as you say, the founding fathers didn't adhere to the concept of equal rights as stated in the constitution in its strictest sense, after all slavery continued well after its implementation and women couldn't vote into the twentieth century, guess why, not because they were all racists or sexists, but they were a product of their TIME. A time period where those things were accepted as the norm of the day. I wouldn't call those actions however ones of strict constructionists in its truest sense. If man is equal he is equal, if my propery is protected, it should remain protected. The government itself has seized land for numerous reasons. Thus the irony of those who claim to rely on the principles of the founding fathers who were men of their time, as we all are. |
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| Capitalizt |
If times are truly changing and government needs to make fundamental changes, there is already a process to do that...by ammending the Constitution.
The ammendment process was designed to protect the American people from their government, and new powers were NOT be granted to government unless specifically authorized by ammendment to the Constituion. If we had a constructionist Supreme Court today, this ridiculous "eminent domain" ruling for instance, would never have occured.
That ruling was a HUGE change in our fundamental law...essentially declaring the right to private property void if your property happens to get in the way of the "public" (or private) interest. Huge changes like this should never be allowed to occur without broad public backing. And the best way to assure this is to make the changes through the ammendment process, which requires a broad majority in congress, the senate, AND in state governments across the country.
Unfortunately as it stands now, the twisted opinion of a single judge is allowed to create unquestioned "law" from thin air...and reduce our liberties in the process. A constructionist would not create law, or enable the government to exceed the specific powers granted to it by the Constitution, no matter how noble the ends may be.
If we want government to be more powerful or more intrusive in any area of life in order to "solve" a big problem or injustice, we can always ammend the Constitution to grant government that power. One judge shouldn't have the power to force his opinion on a nation of 300 million. |
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