Posted on 01/18/2006 6:38:19 PM PST by RWR8189
If we wanted to enshrine stare decisis then Plessy vs. Fergussen ("separate but equal schools are OK for the races"--i.e., meaning segregated schooling) should have been upheld, and Brown vs. Board of Education was wrongly decided.
Likewise, Dread Scott (black inhabitants of the USA are
not citizens, and cannot become citizens; and slavery
means ownership of the individual, and not just ownership of his labor) should still be the law of the land.
However, SCOTUS does reverse itself from time to time (proving it is not infallible. . .)
A point important far beyond judicial confirmations. I think part of the left's moonbattery these days is because they cannot see how "progress" could be stopped. In the U.S., at least in the medium term, the future is not one in which their blueprint is implemented, and that seems strange to them. Legalized abortion, relaxed attitudes toward family structure, state health care, earnestly implementing the multicultural pieties and so on are the natural endpoint of our having learned to get out of the oceans and walk erect in the first place, and so it does not compute that a society would voluntarily reject it. That Old Europe, where these views have most come to fruition, is in such a bad way (which they know in their hearts but don't admit in public) just makes it worse.
The unusual American conservative movement, with its emphasis on low taxes, limited government and traditional social mores, is an in-your-face challenge to the left's entire cognitive map of human society. And its success is correspondingly taking its toll on them.
As usual, right on the money.
The favorite term that leftists have had for themselves over the past couple of hundred years is "progressive."
They believe in progress, which as Hindraker remarks, always moves to the left.
Karl Marx elevated this thinking into a scientific principle. The inevitable march of progress would relegate religion and superstition and nobility and kingship and all the relics of the past to the "dustbin of history."
"Time marches on," as the newsreels used to say when Franklin Delano Roosevelt was president.
But the twentieth century revealed that progress is not inevitable, that Communism was history's bloodiest failure, and that the advancement of humanity to higher and higher levels was by no means inevitable. In fact, postmodernism has abandoned those old ideas of progress, but somehow has adopted the marxist vision to new cultural systems.
Incidentally, I hesitate to mention it, but Darwin played no small role in this credulous belief in everlasting progress, onward and upward. It is no coincidence that our imperial courts are anxious to impose Darwin on our children at the same time that they outlaw relgion from our schools.
Excellent piece, and greatt posts thus far.
Uhhh, that would be "Dred Scott" as in "Dred Scott v Stanford," and if Stare Decisis is to become the latest amendment to the Constitution, well, let's revisit Dred Scott!
Or, let the Dims STFU!
And that would be a correct assessment.
Good analysis.
"It's the Judiciary, stupid", should be the conservative mantra.
I wonder if they include 'Brokeback Mountain' as part of that advancement?
Perzackly.
Sadly, even if Roberts and Alito turn out as we hope, we still need another vacancy to finally right the Court. The only other hope would be that Roberts and Alito are somehow able to turn Kennedy back from the Dark Side, but his embrace of the living constitution nonsense (as Scalia pointed out in a dissent in the recent case where SCOTUS overturned a 15 yr old precedent on juvenile execution, Kennedy absurdly maintained that the Constitution had somehow changed in the intervening 15 yrs, not that his own views had changed) I think that will be a long shot at best.
"Actually, Dread Scott was never overturned by any court. It was rendered moot by the 13th Amendment."
Which amendment was arguably never ratified, since the southern states were out of the union at the time, and not counted in the 3/4 total needed for ratification.
Of course. More abortion. More perversion. More sex without consequences--except for the consequences of depression, disease, and death. More assisted suicide. More cloning. More AIDS so we can have more AIDS walks.
That's progress.
I prefer the precedent of the constitution.
In my scenario, a conservative majority would announce that the doctrine of adherence to original intent would govern the interpretation of the Constitution. Scalia could explain it quite clearly, and even the libs might begin to understand it. Basically, if you don't use original intent, you get judicial tyranny, because then the Constitution says whatever any 5 justices say it says, and representative government is seriously undermined. The constitution is living, in that it contains a procedure for amendment. That is the democratic way to do it properly.
Having explained this principle in some major decisions of first impression, the court could then branch out to look at decisions that have already been decided, that would normally be protected under stare decisis. If those cases involve an interpretation of the Constitution that was premised on the notion that the founders' original intent is irrelevant, as all liberal decisions are, the establishment of the principle that original intent governs would require that the decision be re-examined and overturned.
It is a two step process: First educate the public on the importance of original intent in interpreting the Constitution. Then start blowing away the crappy decisions of the past 60 years which basically destroyed the Constitution as a document that means anything, if they clearly were decided on principles other than original intent.
Well no, that one was overturned the only way the meaning of the Constitution can be changed, by the amendment process. Amendments 13 and 14. Strangely though, other decisions that would seem to be overturned by the 14th amendment are still considered "good law", especially when it comes to applying the immunities protected by the second amendment to state actions.
"It took a while longer for the conservative trend to reach the judiciary..."
Too bad Republicans nominated Souter, Stevens, O'Conner and Kennedy.
Had they used those picks for the equivalent of Scalia, Thomas, Roberts and Alito--the majority would be already in hand.
That shows the importance of a President to pay close attention to who he nominates.
I agree with your assertion.
There may be a constitutional legislative way to limit the court's jurisdiction. But, we would need a stronger legislature.
In general, you're right, but Dred Scott v. Sandford was reversed at Gettysburg, and not by the US Supreme Court.
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