Courts and Law

By James Constant

Jurisprudence. Philosophy of Law. Uncertainty of Law and Constitutional Government. This book looks at Courts and Law: Original Intent; Judicial Activism; Reserved Rights and Powers; Political Questions; Constitutionalism

• Language: English
• Publisher: James Constant
• Release date: Oct 7, 2013
• ISBN: 9781301568871

James Constant

writes on law, government, mathematics and science, as they are and as they should be

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Courts and Law

By James Constant

Smashwords Edition

Copyright © 1993,2013 by James Constant

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Table of Contents

Original Intent

Judicial Activism

Reserved Rights and Powers

Political Questions

Constitutionalism

COURTS AND LAW

In his 1977 book Government by Judiciary, Raoul Berger made a powerful attack on judicial activism that triggered debate over the role of courts in society. [226] In his 1978Book Federalism Berger tells us that federalism, a fundamental part of the Constitution, has no substantial constituency in the federal and state governments and courts. [227]On the other hand, the American Bar Association (ABA) tells us that the Constitution and federalism remain essentially sound. [228] And, with few exceptions, the Supreme Court has been exceedingly reluctant to limit Congress to its constitutionally enumerated powers, which actually do have a textual basis in the Constitution. [229]

ORIGINAL INTENT

The Constitution has such relevance as the Supreme Court chooses to give it, and the Court is truly a continuing constitutional convention, constantly engaged in revising the Constitution, a role clearly withheld from the Court. The Court now functions as a legislative body. [230] The justices have become a law unto themselves. As chief justice Hughes (1862-1948 A.D.) candidly remarked We are under the Constitution, but the Constitution is what the judges say it is. [231] How long can public respect for the Court, on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as unconstitutional is itself acting unconstitutionally. Intellectual honesty demands that the original understanding be honored across the board, unless we are to accept judicial revision . . . as is the current fashion. But that is to reduce the law to the will of a kadi. The list of cases that would fall were the original understanding honestly applied is indeed formidable. Virtually the entire body of doctrine developed under the due process clauses of the 5th and 14th Amendments, the core requirement of fundamentally fair proceedings, and everything that has been labeled substantive due process would be eliminated. Legal rationalizations