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The law or good ideas? (Walter E. Williams)
Townhall.com ^ | March 30, 2005 | Walter E. Williams

Posted on 03/30/2005 3:41:00 AM PST by The Great Yazoo

Here's my question to you: Should we be governed by good ideas?

You say, "Williams, what do you mean?"

Here's an example: I regularly bike for fun, cardiovascular fitness and, hopefully, for a longer, healthier life. In my opinion, that's a good idea. That being the case, would you deem it proper for Congress to enact legislation requiring Americans to bike regularly or perform some other cardiovascular fitness exercise?

What if Congress didn't act on this good idea? Would you deem it proper and acceptable if five out of nine U.S. Supreme Court justices, in the name of "evolving standards" and promoting the general welfare, decreed that we all participate in some fitness exercise?

Let's look at it. It's easy to dismiss my questions and example by saying they're stupid and far-fetched. A more enlightened response would be to quote from Thomas Jefferson: "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated." In other words, Congress holds only those powers delegated or enumerated in the Constitution.

Your followup response might be another Thomas Jefferson quotation: "[T]hat whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force." That means if Congress or the courts were to mandate biking, we could ignore it.

Suppose biking advocates saw no hope in getting Congress to enact legislation mandating regular biking and saw the U.S. Supreme Court as a means to accomplish their ends. Tell me your preference. Would you prefer the justices to rule along the lines they did in the recent Roper v. Simmons case, finding the execution of teenagers unconstitutional because, as Justice Anthony Kennedy speaking for the 5-4 majority said, "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty"? Modified to fit my biking example, Justice Kennedy might say, "We acknowledge the overwhelming weight of international opinion that regular biking is a good idea."

Or, would you prefer the justices to say, "We're guided by the U.S. Constitution, and we find no constitutional authority to rule that Americans must regularly bike, despite your nonsense argument about the 'promoting the general welfare' clause; get out of our court"?

Whether "evolving standards," the "weight of international opinion" and good ideas should determine court decisions underlies much of the ongoing conflict over President Bush's federal court appointees. A federal court appointee who'd say his decisions are guided by the letter and spirit of our Constitution would be tagged by Democrat senators and a few Republican senators, such as Arlen Specter, as an extremist. They'd prefer justices who share former Chief Justice Charles E. Hughes' vision that, "We live under a Constitution, but the Constitution is what the judges say it is." Translated, that means we don't live under the Constitution; we live under tyrannical judges.

Many law professors, and others who hold contempt for our Constitution, preach that the Constitution is a living document. Saying that the Constitution is a living document is the same as saying we don't have a Constitution. For rules to mean anything, they must be fixed. How many people would like to play me poker and have the rules be "living"? Depending on "evolving standards," maybe my two pair could beat your flush.

The framers recognized there might come a time to amend the Constitution, and they gave us Article V as a means for doing so. Early in the last century, some Americans thought it was a good idea to ban the manufacture and sale of alcohol. They didn't go to court asking the justices to twist the Constitution to accomplish their goal. They respected the Constitution and sought passage of the 18th Amendment.

The founders were right about a lot of things, but they were dead wrong when they bought into Alexander Hamilton's Federalist Paper No. 78 prediction that the judiciary was the "least dangerous" branch of government.

©2005 Creators Syndicate, Inc.



TOPICS: Constitution/Conservatism; News/Current Events
KEYWORDS: transjudicialism; walterwilliams

Turning back the frontiers of ignorance!


1 posted on 03/30/2005 3:41:00 AM PST by The Great Yazoo
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To: The Great Yazoo

-...would you deem it proper for Congress to enact legislation requiring Americans to bike regularly or perform some other cardiovascular fitness exercise?-

Coming soon to a court near you.


2 posted on 03/30/2005 3:50:28 AM PST by AmericanChef
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To: The Great Yazoo
Marbury turned the judiciary into a political branch. The only way to rein in judges, is to abolish judicial review. That way who the President and Governors appoint won't matter. It would force the Left to make its case to the public instead of judges. And it would make legislators accountable to the voters for passing an unconstitutional law since they can't pass the buck off to a judge. Above all, it would restore and butress the constitutional separation of powers by confining each branch of the government to its proper functions.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
3 posted on 03/30/2005 3:50:47 AM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: The Great Yazoo

Williams bump! The fresh air of rationality!


4 posted on 03/30/2005 3:50:55 AM PST by Tax-chick ("I can't live in a yurt and dine on Mongolian barbecue.")
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To: The Great Yazoo
Walter E. Williams Home Page


5 posted on 03/30/2005 3:52:18 AM PST by The Great Yazoo ("Happy is the boy who discovers the bent of his life-work during childhood." Sven Hedin)
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To: The Great Yazoo
The founders were right about a lot of things, but they were dead wrong when they bought into Alexander Hamilton's Federalist Paper No. 78 prediction that the judiciary was the "least dangerous" branch of government.

Among their other glaring errors are the "general welfare" clause and the "necessary and proper" clause. Actually, the Federalists were wrong about a lot, but didn't have to live to see it.

6 posted on 03/30/2005 4:04:20 AM PST by Huck (:-)
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To: The Great Yazoo

"How many people would like to play me poker and have the rules be "living"? Depending on "evolving standards," maybe my two pair could beat your flush. "

Although the various professional leagues do change the rules from time to time....NFL.


7 posted on 03/30/2005 4:27:50 AM PST by Smartaleck
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To: Smartaleck
the various professional leagues do change the rules...

Even so, the Designated Hitter IS a commie plot!
8 posted on 03/30/2005 4:29:26 AM PST by The Great Yazoo ("Happy is the boy who discovers the bent of his life-work during childhood." Sven Hedin)
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To: The Great Yazoo

I wont go biking for excercise no matter what the Supreme Court says, I look awful in those skin tight biking suits and that funny looking helmet is really dumb looking. I also dont like to play in the streets where cars are going 60 and I am peddling along at 10 in the center of the lane, I use the center of the lane because everyone knows I pay my taxes and have as much right to the center as these damned cars. I also drive beteween the cars to get at the front when lights change and sometimes I go thru the red lights because I can ,I am a biker.Nope I aint riding no bicycle, I get plenty of excercise right at home pushing buttons on my remote.


9 posted on 03/30/2005 4:29:48 AM PST by sgtbono2002
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To: The Great Yazoo

10 posted on 03/30/2005 4:33:09 AM PST by pageonetoo (You'll spot their posts soon enough!)
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To: The Great Yazoo

Damn I wish he taught at my daughter's college!


11 posted on 03/30/2005 4:45:56 AM PST by ladiesview61
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To: pageonetoo

Touche



Pardon my French.
12 posted on 03/30/2005 4:47:33 AM PST by The Great Yazoo ("Happy is the boy who discovers the bent of his life-work during childhood." Sven Hedin)
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To: The Great Yazoo
Saying that the Constitution is a living document is the same as saying we don't have a Constitution. For rules to mean anything, they must be fixed. How many people would like to play me poker and have the rules be "living"? Depending on "evolving standards," maybe my two pair could beat your flush.

Precisely.

13 posted on 03/30/2005 4:51:39 AM PST by Fester Chugabrew
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To: The Great Yazoo
would you deem it proper for Congress to enact legislation requiring Americans to bike regularly or perform some other cardiovascular fitness exercise?

No.

What if Congress didn't act on this good idea? Would you deem it proper and acceptable if five out of nine U.S. Supreme Court justices, in the name of "evolving standards" and promoting the general welfare, decreed that we all participate in some fitness exercise?

No.

That was easy.

14 posted on 03/30/2005 4:51:49 AM PST by IronJack
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To: Huck
Among their other glaring errors are the "general welfare" clause and the "necessary and proper" clause.

Add to that the "equal protection" clause of the Fourteenth Amendment, and the "well-regulated militia" clause of the Second.

15 posted on 03/30/2005 4:55:11 AM PST by IronJack
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To: The Great Yazoo
...or maybe...


16 posted on 03/30/2005 4:55:46 AM PST by pageonetoo (You'll spot their posts soon enough!)
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To: The Great Yazoo
...or...


17 posted on 03/30/2005 4:58:03 AM PST by pageonetoo (You'll spot their posts soon enough!)
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To: The Great Yazoo
...and don't forget...


18 posted on 03/30/2005 5:01:25 AM PST by pageonetoo (You'll spot their posts soon enough!)
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To: The Great Yazoo

Great article. Exposes America's Mullah$. Con men with robes, weaving a tangled web of terminology.


19 posted on 03/30/2005 5:10:15 AM PST by PGalt
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To: IronJack

And let's not forget the 19th amendment! :-P


20 posted on 03/30/2005 5:21:31 AM PST by Huck (:-)
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To: The Great Yazoo

"Even so, the Designated Hitter IS a commie plot!"

Yes, but the "esteem" of poor hitters hasn't been further damaged. LOL


21 posted on 03/30/2005 5:26:31 AM PST by Smartaleck
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To: Smartaleck
Although the various professional leagues do change the rules from time to time.

But they don't change them in the middle of a game to favor one team over another. The umpires aren't supposed to decide in the middle of the World Series that the Red Sox batters get four strikes, while the Cardinals only get two.

The role of the courts is like the umpires, they determine the facts and apply the rules. It is not the role of the courts or the umpires to make the rules.

22 posted on 03/30/2005 5:39:21 AM PST by Lonesome in Massachussets (Deadcheck the embeds first.)
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To: pageonetoo

Sacré Blu!


23 posted on 03/30/2005 5:44:52 AM PST by The Great Yazoo ("Happy is the boy who discovers the bent of his life-work during childhood." Sven Hedin)
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To: The Great Yazoo
"BLACK, by popular demand"!
I like this guy.
24 posted on 03/30/2005 5:53:33 AM PST by SuziQ
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To: Lonesome in Massachussets

"But they don't change them in the middle of a game to favor one team over another."

So you would say the Terri game has been played and the outcome of the game determined. Her parent's repeated returns to the court is for the purpose of getting a ref/umpire to overturn the games outcome?

"The role of the courts is like the umpires, they determine the facts and apply the rules."

Seems as if most if not all facts and rules of the case have been upheld?


25 posted on 03/30/2005 6:39:43 AM PST by Smartaleck
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To: Smartaleck
Although the various professional leagues do change the rules from time to time....NFL.

The difference is that the rules do not change during the game.

26 posted on 03/30/2005 8:26:15 AM PST by Phantom Lord (Advantages are taken, not handed out)
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To: Phantom Lord

"The difference is that the rules do not change during the game."

When does the death penalty game end?

(In case you're wondering, I thought the SC erred by making the changes overiding state law.)


27 posted on 03/30/2005 9:36:49 AM PST by Smartaleck
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To: Smartaleck

Please explain for me the connection and relevance between the NFL making changes to the rules between seasons an death penalty cases?


28 posted on 03/30/2005 9:38:24 AM PST by Phantom Lord (Advantages are taken, not handed out)
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To: Smartaleck
Seems as if most if not all facts and rules of the [Schiavo] case have been upheld?

I wasn't refering to the Schiavo case in particular. The Schiavo case, it seems to me, may well be a horrible travesty. I am reluctant to make any pronouncements because it is hard to come by the facts in the case. [If I told you what I think about Dabs Greer and Micheal "Scott Peterson" Schiavo it would get me banned.] The presentation of facts seems to be terribly colored by people's viewpoints. It is further complicated by the fact that certain difficult medical decisions are deliberately left to the discretion of family of an incapacitated person. [Terry Schiavo is clearly in no position to effectively express her preferences.]

The idea of "Rule of Law" in this country is that the rules of the "game" (No, you can't win, you can't tie and you can't not play) are made by a process that accounts for the wishs of all the participants. (Accounts for, not fulfills.) We call this "democracy", of which constitutional representative democracy seems to be the most successful and practical form.

Laws will always be imperfectly administered by fallible human beings. Injustices will occur. Recognizing this is part of growing up. The immature will rage against "the system", often from the editorial offices of the New York Times. The smug and self-interested will assume that it cannot happen to them, or look for ways to game the system. Responsible adults try to find ways to improve the workings of the law.

One problem with any system of laws is that laws made by legislatures are most accutely subject to the law of unintended consequences. The classic example is goverment imposed price controls. Price controls always lead to surpluses and shortages. Either you get gas lines or the government warehouses rotting cheese.

The liberals understand that it is impossible to advance their agenda by democratic means, by taking into account the wishs of everyone, so they try to short circuit the process with judicial "quick fixes". This worked for them in Roe v. Wade, and they've smelled blood in the water ever since. They should not lose sight of the fact that the original quick fix was Dredd Scott.

29 posted on 03/30/2005 10:04:29 AM PST by Lonesome in Massachussets (Deadcheck the embeds first.)
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To: Lonesome in Massachussets

Nice summary on the law.

I suppose what we would hope to accomplish, is that the law should be beneficial to the most people yet guards against the tyranny of the majority as in the case of slavery.

To those ends there will always be some person or some interest group that feels the harms them.

When the gov't tries to be flexible we end up with a bizillion page tax code! LOL


30 posted on 03/30/2005 5:06:52 PM PST by Smartaleck
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To: Phantom Lord

"Please explain for me the connection and relevance between the NFL making changes to the rules between seasons an death penalty cases?"

Rules in a game ....rules in the game of life.

Some think the Constitution is flexible and open to interpretation. Imagine trying to complete a game if the rules can be changed in the middle of the game.

Conversely at the end of the season the NFL does change rules. Perhaps the Constitution should be subject to change?


31 posted on 03/30/2005 5:12:15 PM PST by Smartaleck
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To: Smartaleck
Conversely at the end of the season the NFL does change rules.

Changing the rules is fine as long as it doesn't happen during the course of play.

Perhaps the Constitution should be subject to change?

The Constitution is subject to change and always has been and always will be. Its called the amendment process.

32 posted on 03/31/2005 6:38:58 AM PST by Phantom Lord (Advantages are taken, not handed out)
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To: Phantom Lord

"The Constitution is subject to change and always has been and always will be. Its called the amendment process."

So in the absence of a definition of "cruel and unusual punishiment", the courts will decide, the states will decide, the US Congress will decide?


33 posted on 03/31/2005 3:23:39 PM PST by Smartaleck
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