Well allow me to retort
I was asked for my feelings and/or response to the text of my brother's advice and consent hearing before the U.S. Senate. It's a good read, and I suggest reading it first before continuing here.
In my previous post, I mostly focused on why I like the law as a career. Granted, I'm torn between the lucrative attorney at law and the Josh Lyman-esque hard nosed political frontliner. I gotta admit while the ease and financial pluses of private practice are appealing, public service really entices me. That said, my idea of my chosen profession is entirely different than my interpretation of the Constitution and the role of the judiciary. I'll preface by saying that while I have been branded a Republican by some (merely for geography I feel), I do not conform to any particular party platform. While I do believe political parties are useful and necessary, especially now when there are so many issues out there, I do not subscribe wholly to any one.
That said, Nominee McKenzie and I are not that far off. Articles I-III clearly outline the roles, powers and duties of each branch of government. Article I is the most detailed and largest of the three. I believe this was done for two reasons. First, the Framers wanted the legislative branch, or the People's branch, to be the most powerful of the three. Second, power corrupts, and they knew that. That's why the institution of checks and balances was introduced into our system of government.
However, at the time of the ratification of the Constitution, the branches of government were not equal, despite the checks and balances. Not until Marbury v. Madison did the Court get any teeth. But, where did the Court, and in particular Marshall, get the power to declare anything unconstitutional in Marbury? Simply, it made it up. Judicial review isn't in the Constitution. Marshall and the Court simply invented (hoo hoo, tell em fred) the idea of judicial review. 201 years later, it's still regarded as a natural consequence of the judicial power given by the Constitution. Same goes with many other legal ideas.
Chris cited two of the biggies that his and my generation will be dealing with in the next couple decades - privacy and gender equality. There are those that say that since privacy isn't in the Constitution. That while your right to not be searched and seized absent just cause is protected, your privacy otherwise isn't. Now, I doubt the Framers had the internet, e-mail, instant tabloid tv (or the news as most call it) in mind when they excluded any reference to privacy, but these are also the same Framers who valued a minority at 3/5 a man. That said, I feel that the thoughts and ideas of the Framers are a good barometer when trying to interpret. As far a certain class of interpretation, put me inbetween the Originalist and the Modernist. I think reading and knowing the intent and ideas behind the Framers words will help someone now to put those ideas to work in this time period.
I believe the Constitution is a living document. It should be interpreted in the here and now with the words that the Framers wrote, along with knowing and understanding their original intent on the vague phrases and disputed meanings. That said, do not mistake that I'm saying what the Framers said or believed goes, or their thoughts should be used in weighing the interpretation of the Constitution.
Sociology 101 tells you that norms are rules of conduct that a society has deemed appropriate. Those norms, and thus, laws evolve over time. Its true, the judiciary has become a de facto lawmaker. Laws shouldn't be made by lawsuits and judicial ruling. Stare decisis poses many problems when there is no actual federal law to be ruling on. Recently, there have been instances where perceived judicial "activism" has produced amendments to some state's Constitutions. The fact that someone is forcing the people's hand is, in my mind, a natural balance of the three branches. States are beginning to amend their Constitutions, and sooner or later, the U.S. Congress will be forced into fufilling their obligations. Lets hope sooner than later.
In my previous post, I mostly focused on why I like the law as a career. Granted, I'm torn between the lucrative attorney at law and the Josh Lyman-esque hard nosed political frontliner. I gotta admit while the ease and financial pluses of private practice are appealing, public service really entices me. That said, my idea of my chosen profession is entirely different than my interpretation of the Constitution and the role of the judiciary. I'll preface by saying that while I have been branded a Republican by some (merely for geography I feel), I do not conform to any particular party platform. While I do believe political parties are useful and necessary, especially now when there are so many issues out there, I do not subscribe wholly to any one.
That said, Nominee McKenzie and I are not that far off. Articles I-III clearly outline the roles, powers and duties of each branch of government. Article I is the most detailed and largest of the three. I believe this was done for two reasons. First, the Framers wanted the legislative branch, or the People's branch, to be the most powerful of the three. Second, power corrupts, and they knew that. That's why the institution of checks and balances was introduced into our system of government.
However, at the time of the ratification of the Constitution, the branches of government were not equal, despite the checks and balances. Not until Marbury v. Madison did the Court get any teeth. But, where did the Court, and in particular Marshall, get the power to declare anything unconstitutional in Marbury? Simply, it made it up. Judicial review isn't in the Constitution. Marshall and the Court simply invented (hoo hoo, tell em fred) the idea of judicial review. 201 years later, it's still regarded as a natural consequence of the judicial power given by the Constitution. Same goes with many other legal ideas.
Chris cited two of the biggies that his and my generation will be dealing with in the next couple decades - privacy and gender equality. There are those that say that since privacy isn't in the Constitution. That while your right to not be searched and seized absent just cause is protected, your privacy otherwise isn't. Now, I doubt the Framers had the internet, e-mail, instant tabloid tv (or the news as most call it) in mind when they excluded any reference to privacy, but these are also the same Framers who valued a minority at 3/5 a man. That said, I feel that the thoughts and ideas of the Framers are a good barometer when trying to interpret. As far a certain class of interpretation, put me inbetween the Originalist and the Modernist. I think reading and knowing the intent and ideas behind the Framers words will help someone now to put those ideas to work in this time period.
I believe the Constitution is a living document. It should be interpreted in the here and now with the words that the Framers wrote, along with knowing and understanding their original intent on the vague phrases and disputed meanings. That said, do not mistake that I'm saying what the Framers said or believed goes, or their thoughts should be used in weighing the interpretation of the Constitution.
Sociology 101 tells you that norms are rules of conduct that a society has deemed appropriate. Those norms, and thus, laws evolve over time. Its true, the judiciary has become a de facto lawmaker. Laws shouldn't be made by lawsuits and judicial ruling. Stare decisis poses many problems when there is no actual federal law to be ruling on. Recently, there have been instances where perceived judicial "activism" has produced amendments to some state's Constitutions. The fact that someone is forcing the people's hand is, in my mind, a natural balance of the three branches. States are beginning to amend their Constitutions, and sooner or later, the U.S. Congress will be forced into fufilling their obligations. Lets hope sooner than later.
posted by Patrick at 7:31 PM
1 Comments:
That's a fair point re: Marbury v. Madison. I suppose I would put myself in the category of people you describe as seeing judicial review as a natural extension of the powers laid out in the Constitution. I mean, after all, if the judiciary's role is to determine if someone violated the law, is it not part of its role to determine if Congress violated the law (the Constitution)? Yeah, it's debatable, and yeah, I'd prefer if we just got went ahead and codified it into the document (after all, you can always get an Andrew Jackson who'll say, "They've made their decision. Let's see them enforce it.").
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