Rehnquist died

[gojujay]

You're right. It's not such a big deal. It's a huge deal. It has the potential to completely reshape the Supreme Court. It's happened once in our history.

NOOOOO!! The Left might actually have to get it's agenda through the legislature. That would mean popular approval! Dare they try?

[gojujay]

Any and all supreme court decisions have repercussions on the legislature - it is almost a statement of fact that all supreme court decisions create new law. To say such and such is activist or conservative is meaningless (well it's rhetorical, which amounts to much the same thing).

How do they "create" new law? They strike down a law that offends the Constitution or they affirm that a law does not violate the Constitution. The justification of their decision is what is interesting; 4th Amendment leading to a "right" to privacy...

Which means that only if the constitution is changed can the law change - which is a very strange thing to say.

Some people like to use the "living, breathing document" argument. I like the fact that there is an amendment process...

[keith]

How do they "create" new law? They strike down a law that offends the Constitution or they affirm that a law does not violate the Constitution. The justification of their decision is what is interesting; 4th Amendment leading to a "right" to privacy...

well of course they don't create new law - they simply remind everyone of the law that was already there (you know in the constitution already). Exactly what the original document and the bill or rights actually means is pretty much open debate. For example I am boggled about how this;

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

....gives rise to equal protection at the federal level - doesn't say you can't have different laws for different groups does it? The founding fathers could be quite precise when they wanted to be.

lets face it, if the 5th gives equal protection the 4th gives privacy.

Some people like to use the "living, breathing document" argument. I like the fact that there is an amendment process...

Good point, but history has run against it. Sadly neither party actually runs its social agenda through the legislature and ballot box anymore. Its all nudges and winks about the opinions required of whichever parties supreme court nominee.

I have to say that, IMHO, american politics is a good arguement against a written constitution.

[Philistine]

Abraham Lincoln

??

What about him?

Like a number of other presidents, he had less than 50% of the popular vote, but more of the popular vote than his closest opponent (Wilson, Truman, Kennedy, Nixon and Clinton, in the 20th Century).

Maybe you're thinking of John Quincy Adams, Rutherford Hayes and Grover Cleveland, who are the other Presidents who have had less of the popular vote than their opponents but more votes in the electoral college (and thus president).

--Philistine

[Have At You]

....gives rise to equal protection at the federal level - doesn't say you can't have different laws for different groups does it? The founding fathers could be quite precise when they wanted to be.

lets face it, if the 5th gives equal protection the 4th gives privacy.

You don't see it because it's NOT the fifth that gives equal protection. That is from the well-known "Equal Protection Clause" of the FOURTEENTH amendment. ("No State shall...deny to any person within its jurisdiction the equal protection of the laws.")

I can see how you could be confused, as both the Fifth and Fourteenth have Due Process clauses (for different things). But only the 14th is the basis of Equal Protection.

[Philistine]

You don't see it because it's NOT the fifth that gives equal protection. That is from the well-known "Equal Protection Clause" of the FOURTEENTH amendment. ("No State shall...deny to any person within its jurisdiction the equal protection of the laws.")

I can see how you could be confused, as both the Fifth and Fourteenth have Due Process clauses (for different things). But only the 14th is the basis of Equal Protection.

But the thing is--the 14th Amendment doesn't affect the Federal Government, so arguably, there is nothing preventing the Federal Government from denying the equal protection of law to a person.

In a case that came down at the same time as Brown v. Board of Education (this case dealt with integration of DC schools--DC being controlled by the Federal Government, and thus not subject to the 14th Amendment)--the Sup. Court held that the 5th Amendment's federal due process clause essentially encompassed the doctrine of equal protection--which was sensible, if a bit of a kludge.

--Philistine

[keith]

You don't see it because it's NOT the fifth that gives equal protection. That is from the well-known "Equal Protection Clause" of the FOURTEENTH amendment. ("No State shall...deny to any person within its jurisdiction the equal protection of the laws.")

I can see how you could be confused, as both the Fifth and Fourteenth have Due Process clauses (for different things). But only the 14th is the basis of Equal Protection.

Although I am late and Philistine has made the point ( ), so no I wasn't confused - it is you sir who seems to be suffering from confusion .

[Have At You]

Aaargh! (Smacking forehead.)

Yes.

But application of one amendment to show that the protections of another amendment apply federally is not the same as deriving constitutional dictates from "emanations" and "penumbras" of the principles underlying other rulings (to quote that over-quoted case).

[keith]

Aaargh! (Smacking forehead.)

I know that feeling.

But application of one amendment to show that the protections of another amendment apply federally is not the same as deriving constitutional dictates from "emanations" and "penumbras" of the principles underlying other rulings (to quote that over-quoted case).

.....but if they didn't write it in the first ten and it is not explicitly written in a later amendment it can only come from "emanations" and "penumbras" - two terribly underused words I must say.

So for a 'strict' constitutionalist there are two questions;

If the founding fathers had meant to include equal protection why didn't they?

What is it in the 14th amendment that implies an extension to federal law? After all that extension could have been explicitly written into the 14th amendment (but wasn't).

[Have At You]

You're making me argue the strict constructionalist perspective -- which I do not happen to share -- but my understanding is that they don't rely on the original founding fathers for ALL constitutional interpretation, but rather only for those bits which the founding fathers actually wrote. For later amendments (and statutes and regulations and case law, for that matter), they would seek to apply the original intent of those who wrote those later bits of law. And any changes in meaning would require a rewrite of the law in question.

(Since I bring up my perspective, here it is: It is probably obvious that I am somewhat of a judicial conservative, but I also believe that the underlying principles are more important than the actual words on the page, and thus would allow the law to evolve without constant amendment.)

[gojujay]

Good point, but history has run against it. Sadly neither party actually runs its social agenda through the legislature and ballot box anymore. Its all nudges and winks about the opinions required of whichever parties supreme court nominee.

Then shame on us for letting them get away with it.

[keith]

Then shame on us for letting them get away with it.

Yep, although many of the 'getting away with its' are in fact not things many americans would want rolled back. Even those americans who would like to think of themselves as 'strict constructionalists'.

After all a 'right to privacy' is hardly something a libertarian can object to, eh?

[Slim]

Not that it really matters--but according to the FEC--the popular vote was 50,999,897 for Gore, and 50,456,002 for Bush.

FEC 2000 Vote Totals


--Philistine

One slight comment here...it seems you fail to understand we have an electoral college in this country. Things may be different in the country in which you reside. But, I can see your confusion as the "progressives" in this country also seemed to have forgotten this. Glad to help.

EDIT: Oops. Re-read your post. Yes you are correct, it doesnt matter what the popular vote is. So, why then if you knew it didnt matter did you bother to bring it up?

Slim

[Philistine]

One slight comment here...it seems you fail to understand we have an electoral college in this country. Things may be different in the country in which you reside. But, I can see your confusion as the "progressives" in this country also seemed to have forgotten this. Glad to help.

EDIT: Oops. Re-read your post. Yes you are correct, it doesnt matter what the popular vote is. So, why then if you knew it didnt matter did you bother to bring it up?

Slim

You might want to go back to that post and see what I was responding to--you know--the post that said that Gore lost the popular election.

A little advice--read slower--post slower.

--Philistine

[Maeve_Mari]

One slight comment here...it seems you fail to understand we have an electoral college in this country. Things may be different in the country in which you reside. But, I can see your confusion as the "progressives" in this country also seemed to have forgotten this. Glad to help.

EDIT: Oops. Re-read your post. Yes you are correct, it doesnt matter what the popular vote is. So, why then if you knew it didnt matter did you bother to bring it up?

Slim

Ha! You don't know much about the country he resides in? Yea... old Philly has them all baffled!

[gojujay]

Yep, although many of the 'getting away with its' are in fact not things many americans would want rolled back. Even those americans who would like to think of themselves as 'strict constructionalists'.

After all a 'right to privacy' is hardly something a libertarian can object to, eh?

That's the rub of it. Because it's not specified in the Constitution, it will always be subject to interpretation. If there were a specific Amendment about it and not just an implication and hoped for inference, the "right" would be much stronger.