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I think I might understand what you're saying if you're saying that "history" is consulted to understand the "rules" which are applied to the actual text of the Constitution. Please correct me if I'm wrong.
What exactly are the "rules" you are referring to? Do you mean the common law rules for interpreting laws as they existed at the time the Constitution was made, which I sometime refer to as Blackstone's rules for interpreting English laws?
Basically, yes. As for the "rules", I mean by any process that attempts to evaluate legal sense or exactness within them. If they all use history as a guide, then they place their additional tools into the proper context to achieve an understanding.
The majority is not seeking its will over the minority. If anything, historically, its been the other way around.
Yet you ignore the fact that if these meanings can be adjusted or interpreted by "the word of the day" without regards to their implications of their original intent, then they are ultimately subject to the will of the majority.
Yet you ignore the fact that if these meanings can be adjusted or interpreted by "the word of the day" without regards to their implications of their original intent, then they are ultimately subject to the will of the majority.
They are not subject to the will of the majority. They'd be subject to a plausible dissenting opinion rendered by the justices. That is why issues such as abortion and affirmative action have been thoroughly contested.
Anyway, how does this qualifiy as judicial activism?
They are not subject to the will of the majority. They'd be subject to a plausible dissenting opinion rendered by the justices. That is why issues such as abortion and affirmative action have been thoroughly contested.
Anyway, how does this qualifiy as judicial activism?
And are not the justices their own majority? Who places them into the power to make those decisions if it is not by the majorities will to pick those that "see things" more along their lines?
Look merely at the decisions and we see a constant struggle over time with the judges being more of this side or that. Look at how congress often makes objections about the manner to which these justices hold their opinions in general and make effort to appeal to one side or the other based on public influence and interpretation.
So if a judge leans one way in their "modern beliefs", their decisions often lean that way regardless of the topic they rule on. How is that not judicial activism?
And are not the justices their own majority? Who places them into the power to make those decisions if it is not by the majorities will to pick those that "see things" more along their lines?
I thought it was the president's decision, at least at the federal level.
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Look merely at the decisions and we see a constant struggle over time with the judges being more of this side or that. Look at how congress often makes objections about the manner to which these justices hold their opinions in general and make effort to appeal to one side or the other based on public influence and interpretation.
So if a judge leans one way in their "modern beliefs", their decisions often lean that way regardless of the topic they rule on. How is that not judicial activism?
It's not judicial activism simply because their sociopolitical orientation is not what you'd prefer. By the same reasoning, a conservative justice with "traditional beliefs" would engage in the same kind of activism based on their slanted interpretation.
Also, you seem to be neglecting the fact that the political predilections of the justices vary, and that it takes consensus to arrive at a majority opinion. Even then, you still have strong dissenting opinions. So if you are attempting to claim judicial activism, that would entail revisiting all the opinions given by the SCOTUS and striking them all down as products of activism. It's a slippery slope, because, according to your rationale, the function of the Court is synonymous with activism regardless of the decision being made.
I thought it was the president's decision, at least at the federal level.
Thats why it is so easy for a president to pick who serves? You seem to be ignoring the entire fiasco we went through in selecting justices recently.
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Originally Posted by evolvement
It's not judicial activism simply because their sociopolitical orientation is not what you'd prefer. By the same reasoning, a conservative justice with "traditional beliefs" would engage in the same kind of activism based on their slanted interpretation.
Also, you seem to be neglecting the fact that the political predilections of the justices vary, and that it takes consensus to arrive at a majority opinion. Even then, you still have strong dissenting opinions. So if you are attempting to claim judicial activism, that would entail revisiting all the opinions given by the SCOTUS and striking them all down as products of activism. It's a slippery slope, because, according to your rationale, the function of the Court is synonymous with activism regardless of the decision being made.
So as you say, it all comes down to what the people decide they want. That is, the process of electing officials which will side with their majority based leanings, who then will see to it that the process picks those who would rule in their favor regardless of past rulings and use legalize of the moment to strike down previous rulings, including the constitution because as you say, it is merely a document that is a living reflection of the times and the past 200 years can not dictate todays interpretations.
The founders did speak of this. They knew even this system we have is not perfect and is subject to corruption if the people become corrupt, that even though they took steps to limit the power of he majority over the minority, eventually corruption would win out. Its why Jefferson believed no form of government could stand too long without the people cleansing the corruption. Though they also said that a people without virtues would only create a government that is a reflection of themselves.
Now, I'm lost again. What would be a few good examples of processes that attempt to evaluate legal sense?
Well, any really that applies a method to deriving meaning from text or law and its intent formed by a body to which they attempt to place the laws within their context. It could be using a method as you provided or Rules of Construction to which the laws are to be interpreted by various states (their words and meaning), etc...
Point is, words alone are nothing more than a medium of communication. Even proper rules of communication can be approached in ways to violate their intentions. Thats why history is important in finding the context to which these laws refer. Without it, they are words to be used according to any method applied and that method is merely that, a set of rules to evaluate rules, not a clarification to them, though it is their goal to achieve it.
I am not sure what you are getting at Flash, spit it out if you have a direction you are going, I would be interested to hear it.
Thats why it is so easy for a president to pick who serves? You seem to be ignoring the entire fiasco we went through in selecting justices recently.
So as you say, it all comes down to what the people decide they want. That is, the process of electing officials which will side with their majority based leanings, who then will see to it that the process picks those who would rule in their favor regardless of past rulings and use legalize of the moment to strike down previous rulings, including the constitution because as you say, it is merely a document that is a living reflection of the times and the past 200 years can not dictate todays interpretations.
The founders did speak of this. They knew even this system we have is not perfect and is subject to corruption if the people become corrupt, that even though they took steps to limit the power of he majority over the minority, eventually corruption would win out. Its why Jefferson believed no form of government could stand too long without the people cleansing the corruption. Though they also said that a people without virtues would only create a government that is a reflection of themselves.
Again, a reevaluation of the Constitution does not annul it or render it obsolete. I think that is where we fundamentally differ (among many other things, clearly). Society changes, and what you deem "corruption" is actually gradual - and inevitable - transition. The Founders could not anticipate the transformations of today. How could they? You appear to be endorsing a return to the 18th century. That is the inevitable conclusion that I have garnered from you because it's the only recourse that would satisfy your requirements.
Well, any really that applies a method to deriving meaning from text or law and its intent formed by a body to which they attempt to place the laws within their context. It could be using a method as you provided or Rules of Construction to which the laws are to be interpreted by various states (their words and meaning), etc...
What rule, or rules, would you apply to the text of the establishment clause to ascertain the meaning of the word "religion" in the clause?
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