Interesting legal issues
Robert Knighton
This is being posted to both net.abortion and net.legal. I believe
that it is of interest to all concerned.
Recently I read an interesting piece written by a lawyer about the
constitutional legality of the decisions of the supreme court becoming the
law of the land. Given as evidence were three decisions handed down since
1957. These are:
1. Brown v. Board of Education (1957) [Mandatory desegregation],
2. The Madeline Murray O'Hare case (1963) [No prayer in schools],
3. Roe v. Wade (1973) [Legalized abortions on demand].
Now I am intrigued by this information. It is true that the consti-
tution gave legislative powers only to congress, and (*in my opinion*) the
judiciary does _not_ have the power to legislate. They only have the power,
yes the grave responsibility, to uphold the integrity of the constitution.
This is supposed to make any change in the constitutional rights of citizens
very hard to do. Requiring the full process of ammendment. In these three
cases we have nine men effectively ammending the constitution by precedent,
and that is not constitutional. [But who is going to tell them? :-)]
Now if these decisions ARE invalid as the law of the land, then we
need to act and make sure that they are either upheld or withdrawn from
public law. As far as I can tell (and I'm no attorney) precedent is useful
in civil or criminal cases, but not in questions of constitutionality. I am
a citizen of this country and proud of it. I just can't sit here and let
the balance of power be upset by the supreme court. They are supposed to be
above politics because of their life terms. They are also sworn to uphold the
constitution _as_it_stands_, not as they see it.
'Nuff said. If you wish to express your opinion to me then E-Mail.
Although, I would like to see the debates that will undoubtably arise.
The article I referred to may be found in _Americans_against_Abortion_
Vol. 1 No. 2.
-------------------------------------------------------------------------------
!ihnp4!oswego!gacs3651 (Robert Knighton)
!warrior/
(Any Ideas for a better sig. file?) ( How about a more accurate path?)
Genuine mail and flames both gleefully accepted. It's boring around here.
-------------------------------------------------------------------------------
Edward C. Kwok
>
> Recently I read an interesting piece written by a lawyer about the
>constitutional legality of the decisions of the supreme court becoming the
>law of the land. Given as evidence were three decisions handed down since
>1957. These are:
>
> 1. Brown v. Board of Education (1957) [Mandatory desegregation],
> 2. The Madeline Murray O'Hare case (1963) [No prayer in schools],
> 3. Roe v. Wade (1973) [Legalized abortions on demand].
>
> Now if these decisions ARE invalid as the law of the land, then we
>need to act and make sure that they are either upheld or withdrawn from
>public law. As far as I can tell (and I'm no attorney) precedent is useful
>in civil or criminal cases, but not in questions of constitutionality. I am
>a citizen of this country and proud of it. I just can't sit here and let
Justice John Marshall, some time very early in the history of the union,
declared that it was the duty of the court to declare "what the law is".
That is, the only laws that are certified to be constitutional are those
"created" by the supreme court. The court, of course, interprets the
constitution which is the supreme law of the land. It's interpretation
is by definition legal, and is final until the court changes it's mind.
The court respects its own decisions to a certain extent, the doctrine pf
staris decisis (Sp?), and does not change its mind too often. That's
probably why Roe is still the law of the land.
--
_____________
DISCLAIMER:
I do hereby declare that I possess neither the expertise, qualification
nor authority to practise law, medicine, surgery, dentistry, accounting,
veterinary medicine, or any such profession normally requiring extensive
training and licensing. When I speak on matters or express opinions
normally reserved for such persons in the course of the practice of
their profession, I do not speak with competence. No person, born
and unborn, should rely and act upon opinions expressed above. He/She do so
at his/her own risk.
I do speak with dubious authority on matters of Electrical Engineering,
late T'ang dynasty poetic forms, a cat's right to self-determination,
and Computer Science.
Rex Ballard
>
>
>
>that it is of interest to all concerned.
>
> Recently I read an interesting piece written by a lawyer about the
>constitutional legality of the decisions of the supreme court becoming the
>law of the land. Given as evidence were three decisions handed down since
>1957. These are:
>
> 1. Brown v. Board of Education (1957) [Mandatory desegregation],
> 2. The Madeline Murray O'Hare case (1963) [No prayer in schools],
> 3. Roe v. Wade (1973) [Legalized abortions on demand].
>
> Now I am intrigued by this information. It is true that the consti-
>tution gave legislative powers only to congress, and (*in my opinion*) the
>judiciary does _not_ have the power to legislate. They only have the power,
>yes the grave responsibility, to uphold the integrity of the constitution.
The congress is even more restricted in it's legislative powers than that.
Congress, for example, can't build roads for use by the general public,
but they can "postal routes", and whatever means neccessary for the
movement of defence forces. Without liberal interpretations of the
constitution, we could not have Interstate Highways.
The constitutional amendments stipulate the rights of citizens as individuals.
Corporations, for purposes of constitutional rights are usually considered
individual citizens as well.
>This is supposed to make any change in the constitutional rights of citizens
>very hard to do. Requiring the full process of ammendment. In these three
>cases we have nine men effectively ammending the constitution by precedent,
>and that is not constitutional. [But who is going to tell them? :-)]
No, in these three cases, we have a conflict in constitutional values or
rights. In Brown vs. B.O.E. the question of legally mandated segregation
was one of the individual's rights to benefits given by the government.
The state is not required to educate anyone, but is not allowed to
treat citizens differently based on race.
In the O'hare case, the issue was one of privacy over the imposed excercise
of religion.
In the Roe vs. Wade case, we had a problem with the right to "privacy" (not
actually the correct term) of mother, with the right of "due process" of
an entity which did not fit the legal definititon of a United States Citizen.
Since, under current law, you have to be born in the United States, or
naturalized, the privacy of the mother took precedence.
Many of the restrictions on congress do not apply to state and local
governments. Unfortunately, all states, and most local governments
recieve funding directly or indirectly from the federal government.
In those situations where a decision only effects the federal funding
of a state enacted law, states have the choice of finding another source
of funding, or changing their laws.
The Supreme Court often refers to the "intent of the framers of the
constitution" when making their judgements. Historical records, precedent
court cases, and writings of the framers are often used when two values,
both supported by the constitution, are in conflict.
> Now if these decisions ARE invalid as the law of the land, then we
>need to act and make sure that they are either upheld or withdrawn from
>public law.
There are laws, similar to those overturned by the supreme court, still
on the books of several states. In the event that a decision is
reversed, or there is a case so strong that the expense of arrest,
conviction, and appeal all the way up to the supreme court is
justified, a state may choose to enforce such a law. With Supreme
Court Appeal an absolute certainty however, it very rarely happens.
Without this awareness of reality on the part of prosecutors, we
could easily see 50 appeals of the same law, each state's worded only
slightly differently.
>As far as I can tell (and I'm no attorney) precedent is useful
>in civil or criminal cases, but not in questions of constitutionality.
Precedent is used primarily to uphold the validity of an argument,
not as the basis for a final decision. Precedents are also used
to counter arguments. Sometimes, the court will cite precedents
not mentioned in the case, to support the basis of their decision.
>I am
>a citizen of this country and proud of it. I just can't sit here and let
>the balance of power be upset by the supreme court. They are supposed to be
>above politics because of their life terms.
The Supreme Court, like any other branch of the government, is not above
some political maneuvering. The purpose of the life terms is to make
maneuvering a longer, more stabilized process. It takes about 20 years
replace everyone on the Supreme Court. This is why, during otherwise
liberal political environments, the Supreme Court has often been more
conservative than many would wish, and during conservative environments,
more liberal than many would wish.
>They are also sworn to uphold the
>constitution _as_it_stands_, not as they see it.
No, they are sworn to uphold the constitution, period. There have been
strict constructionists, and loose interpretationists on the bench.
Fortunately neither side has ever had a clear majority on all issues,
even for a short time.
To make even the "as it stands" decision a clearly predictable one, it
would be necessary to either remove the bill of rights, and most of
the other amendments, or to add an "itemized list" of things which
state and local governments can and cannot do.
Government has three primary perposes. To protect one person from the
abuses of another, to protect the community it governs from the abuses
of another person or community, and to protect the individual from
the abuses of itself and the community it governs.
The constitution, with it's ammendments, is unique in it's ability to
do this over an extended period of time. Even in this country, there
have been abuses of the type described above, which were endorsed, and
condoned, by the government. These abuses however, are most often
checked only because the Supreme Court has the power that it does.
> 'Nuff said. If you wish to express your opinion to me then E-Mail.
Sorry, E-mail to your site from mine isn't real good right now.
Rob Horn
>In article <7...@oswego.UUCP> gacs...@oswego.UUCP (Robert Knighton) writes:
>> Recently I read an interesting piece written by a lawyer about the
>>constitutional legality of the decisions of the supreme court becoming the
>>law of the land.
>
Marbury v. Madison, 1803 - where the notion that the Court could rule
on the constitutionality of a law was introduced. Very controversial
at the time, and the debate included many of the writers of the
Constitution. (The outcome of the debate should be obvious.)
Other directly relevant cases are:
United States v. Burr, 1807
McCulloch v. Maryland, 1816
Trustees of Dartmouth College v. Woodward, 1819
Read some histories of the Court and you will get a much better
appreciation for the various issues involved and how the current
system evolved.
--
Rob Horn
UUCP: ...{decvax, seismo!harvard}!wanginst!infinet!rhorn
Snail: Infinet, 40 High St., North Andover, MA