Posted on 10/14/2005 1:27:57 PM PDT by You Dirty Rats
I repeat, so as not to be misunderstood, that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose flexible. uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up, and, at the same time, threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.
I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time, and that this Court is charged with a duty to make those changes. For myself, I must, with all deference, reject that philosophy. The Constitution makers knew the need for change, and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification.
(Excerpt) Read more at straylight.law.cornell.edu ...
In fairness to Hugo Black, he was a pretty good judge. I think he did stretch certain constitutional passages beyond their breaking point (the Commerce Clause) to uphold some popular federal legislation. I guess that's why FDR put him on the court. But he did respect popular sovereignty to a good degree and didn't hate the Constitution. He didn't feel himself to be a philosopher king entitled to mow down any law he didn't like under the guise of "updating the Constitution to fit modern times". If he were on the court today he'd be to the right of most of the sitting justices and not much to the left of Scalia & Thomas.
As for his KKK membership, it occurred in the twenties, at the height of KKK power. The Klan then controlled the Democratic Party in several states. If you wanted to run for office in a Democratic precinct, you sort of had to pay your KKK membership dues. Harry Truman did it in Missouri, though he reportedly claimed that the $10 annual dues were too high. As ridiculous as it seems today, joining the KKK before filing to run for office was similar to joining the Kiwanis club in some parts of the country. Black's KKK involvement was largely token membership necesary to get his foot inside the political door.
Still, it did lay the foundation for latter decisions like Roe, and Roberts' support encourages some skepticism about his attitude towards judicial activism.
Another of Justice Black's wise statements:
"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' view of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation". (Emphasis added)
With such a clear expression of his sense of fidelity to the Framers' Constitution, Justice Black's lack of "judicial experience" seems inconsequential, doesn't it?
Even the Framers of that Constitution probably wouldn't have passed the artificial standards being set by Coulter, Kristol, and others. A search of the backgrounds of those men would reveal that of the 55, only 31 were lawyers. According to Wikipedia, "The educational background of the Founding Fathers was diverse. Some, like Franklin, were largely self-taught and had received scant formal training. Others had obtained instruction from private tutors or at academies. About half of the individuals had attended or graduated from college in the British North American colonies or abroad. Some men held advanced and honorary degrees."
When I was in law school, our class had the opportunity to meet with Justice Black in his chambers and to pose questions. Justice Black stated that he was motivated by his distrust of an all powerful big government.
It was the Vietnam war that brought about the change. It discredited the establishment, patriotic & anti-communist of Democrats, opening the door for the moonbats to take over.
Great post, comments. Informative, educational. Thanks.
And yet FDR appointed him to make sure the power of the Federal Government would be greatly expanded.
What I find interesting in the history of "substantive due process" is that many of SCOTUS's rulings that relied on this concept were eventually overturned. It happened with Dred Scott and many of the New Deal legislation; will it happen with Roe?
Griswold was legislation, pure and simple.
The Supreme Court ruled Connecticut's law unconstitutional because they wanted to and they could. It had nothing to do with the Constitution then, and it has nothing to do with the Constitution now.
The power claimed by the Warren Court in Griswold is unlimited, in fact illimitable.
The Republic cannot survive the existence of a Court with this power.
It's that simple.
Because if the Congress passes and the President passes an unconstitutional law, the Constitution is meaningless unless the court declares it unconstitutional. We might as well just tear up the document.
I think judicial review of constitutionality is perfectly rational and a key part of the checks and balances built into our constitutional system from the beginning. The problem is the elastic concepts like fundamental rights, substantive "due process" and equal protection, which are so elastic that the court can try to make policy decisions according to their social and political predilections.
That's all very nice and good, but the Constitution does not give the Court that power.
Griswold was legislating from the bench, plain and simple.
I just wanted to see that repeated.
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