desh | (no subject)

So I was reading this opinion piece last weekend in the Inquirer. And it really got me thinking about political science and morals and which direction the country should be going and so on. It did such a good job that I didn't even tune out once I realized that it was coming from a right-wing perspective noticeable enough that I would normally not give much credence to it. (Yeah, that's perhaps bad of me, that I normally do that. Oh well.)

The piece starts out by mentioning how Justice Warren's decision in Brown v. Board of Education used the 14th Amendment (equal protection) to find "separate but equal" unconstitutional. The argument becomes clear about a third of the way in, when the author states that "As the members of the court were aware, however, the history of the Fourteenth Amendment was very conclusive that segregation was not a constitutional problem." He then goes on to essentially bash judicial activism at the highest levels.

I don't agree with all of his points. For example, I think that Lawrence v. Texas, striking down a law banning male-male sodomy, was a good decision. Not just from a moral standpoint, where I think my opinion is clear to anyone who knows me well, but from the standpoint of the powers of a federal court to rule on such a thing. Why? Because the ruling relied heavily, if I remember correctly, on the fact that the law specifically did not ban male-female sodomy, and therefore lacked the ability to pass an equal protection litmus test.

But in many cases, he has a good point. I've long thought that lawmaking from the bench was a problem, even when I tend to agree with the laws. There are no checks and balances with such a thing, no easy way to repeal or modify such laws if necessary. There is no constitutional basis for a lot of these decisions. And in some cases, federal courts come awfully close to just trampling all over states' rights.

I'm really starting to wonder whether I'm opposed to Roe v. Wade. It's not because I'm opposed to abortions, even though I think I am--in nearly every instance in which I have a right to an opinion, which is almost never. I support a woman's right to choose. But I don't support the fact that it came from the Supreme Court. I don't see anything in the U.S. Constitution preventing a state from making a law banning abortions. I've heard that it's either a very right-wing thing or a very 19th-century thing to read the Constitution as literally as I am, but I don't see the justification for reading between the lines. And it's quite a stretch, for me, to go from the text of the Constitution to not just a ruling permitting abortions in some cases, but one permitting or denying them on such a rigorous timetable based on trimesters.

And not only did the Supreme Court overstep their authority with Roe v. Wade, along with several other decisions mentioned in the column, but Roe became an even bigger problem when it made the Court, to quote The West Wing, a one-issue body. The most important thing in politics, for a lot of people who vote the way I do, is to keep a 5-4 majority in favor of choice on the Court. The Court has so many other important issues to deal with. For me, the civil liberties and 1st Amendment ones are the most important. For other people, other issues may be. But no one cares about those things any more. Wouldn't a federal law about abortion, or even better, a series of state laws, better serve our country?

Whether you agree that Brown v. Board of Education was the catalyst for this judicial activism problem, and I think it's a shaky point to make, it still seems to be a valid, if overemphasized, point that "Because of Brown, representative democracy has been replaced, on the most consequential issues of our time, by the reign of judges". Wouldn't it make more sense for the Legislative branch to reclaim some of its constitutional powers from the Judicial and Executive (another problem which I don't want to go into here, but doesn't it seem strange that our president can declare war now) branches? And then for the people to reclaim control over the Legislative branch from lobbyists, campaign donors, and computer-drawn gerrymandering maps? It would make me a lot happier, at least.

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It's a tricky thing isn't it? On the one hand, the Constitution had a lot of good ideas. On the other hand, it was written in a different time, under extraordinarily different circumstances with regards to the state of the Union.

I think that in order for ours to be an effective system of governance, there must be a certain amount of flexibility -- for certainly to be without it would be to admit such hubris and contempt for the possibility of fault-finding self-examination -- and yet also a certain degree of rigidity, or at least something to prevent succumbing to the fickleness of mob rule.

But in either case I do not think that clinging religiously to a document written over 200 years ago is a good idea, no matter how sagacious and far-seeing its scribes. I'd write more, but I am clearly using up all of my goo-goo juice that I should be using on my paper.

I tend to be on the literalist end; I think I would be happier if the country had not drifted so far from what the Constitution mandates. I am not sure that there is a way for the country to return to a reasonable degree of states rights, however---witness the civil war, federal income tax, and the widespread attitude that the important identification is at the federal level. I would settle for passing some ammendments to bring de jure into line with de facto, and cleaning up the system to remove obsolete vestiges of the old state-centric system.

Now I will have to find out what the basis for Roe vs. Wade was, because I've never really formed an opinion on whether it was a Constitutional issue. I think that there are plenty of legitimate Constitutional issues (free speech, seperation of church and state, intelectual property) where the court should intervene, and I think that the legislature has quite enough power to overrule a court decision, if they would actually use it. I had not thought to connect the evidence that the Executive branch has too much power with the evidence that the Judicial branch has too much power (or is overused), but it seems reasonable.

I wonder if this term's History of Political Thought class will change everything I think about these issues.

Okay, maybe my emphasis on states' rights is a bit unnecessary. (Though I am really curious how things would be if the income tax amendment had never existed, because I'm acutely aware how most federal laws are only allowed because they bully states into not giving them income-tax-raised money unless they follow federal "guidelines".)

But I think the constitutional distinction between the legislature's right to make laws and the judiciary's right to enforce them (even though half of that came from Marbury v. Madison, itself arguably a product of judicial activism...hmmm) is much more important. It's simply not the right of a judge or judges to set policy, and there's no real way to stop them if they do. The judges are supposed to be the check against a bad law, but what if they created one?

The judges are supposed to be the check against a bad law, but what if they created one?

they do sometimes set bad precedents but they also over turn bad presedents. There are lots of objectionable and out dated aspects to the constitution because the laws as well as the documents that this country was founded on are sometimes dated and sometimes wrong. I mean Scott v. Sandford is a prime example of upholding the constitutions intentions even though it was out dated. Sometimes you need one man to say this is wrong and I am going to change it. Sometimes you need judges to stand up against the constitution and say we are going to reinterpret this word to make us better people.

That is one of the things the court is for. not just upholding the constitution but also overturning judgements that others have made. The fourtheenth amendment declairs only men have the right to vote. The first advocate for womens right to vote was abigail addams in 1776 and the original legislators blew it. On the strength of the founding fathers convictions the 14th amendemnt was passed and it took them 144 years from the first advocate to pass the 19th amendment. The reason that was passed though was because the women who were trying to vote got arrested and the courts declaired it illegal.

The system isn't perfect and until it is the lobbist that ensured that former slaves be counted as citizens and complete people and that women have the right to vote and be represented are alright by me.

I mean don't get me wrong as I am the only right wing person to probably read this. I would prefer smaller government and I wish the government would get their nose out of what I am allowed to do with my body. I do not believe that my right to my body should need a constitutional amendment and roe vs wade serves us just fine. Basically all it says is that there was never a law against it thus it is legal and allows women to have an abortion for any reason she sees fit although states can restrict abortions in the last trimester to where the mothers health is jepardized. " After viability the mother's life or health (which presumably is to be defined very broadly indeed, so as to include what many might regard as the mother's convenience...) must, as a matter of constitutional law, take precedence over...the fetus's life..."

I feel I have strayed off topic as it is late and I read the original posting earlier. If I have done so forgive me and I will edit tomorrow

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Ooh, shiny

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