Judicial Review, Judicial Restraint, Judicial Activism and Rights

Ian Murray seamus2001 at home.com
Wed May 16 10:55:25 PDT 2001

Justin wrote:

> What's your point? You can read it, so you know that smoking dope is
> unenumerated right of the people that the Constitution can't deny or
> disparage? That I'm arrogant to suggest we lack the judiciual
standards to
> evaluate such claims? You somehow channel the framers, and that's
> matters? I'm a bit lost here Ian. --jks

========== I'm no fan of orginal intent mythologies, but it seems futile to deny that federalism has totally failed the US citizenry on unenumerated rights. The issue is only secondarily whether the judiciary--one legal faction--are incapable of coming up with standards or methodological invariants to sustain or contain legitimate concerns about "rights inflation"; rather it's the whole collective action/tyranny of the minority issue of another legal faction--legislatures, running roughshod over the tacit dimensions of social life and securing enormous economic and political privelges for themselves in the process of criminalizing differences of "moral outlook". What we have as a result is "duty inflation" instead of "rights inflation" and it is probably every bit as costly.

My sophomoric claim of your arrogance--which I apologize for--was directed at your dismissal of Brad's and others totally legitimate concerns that the C no longer protects ordinary citizens. Where are the safeguards against the legal class who disdain the outlooks, beliefs, ethos, etc. of an enormously heterogenous culture. A tyranny of legal "experts". I use to work in a K street law firm in DC and I can say in all seriousness that what I experienced there and in DC legal culture and the political perpsectives of lawyers in and out of Government should and does scare and anger the hell out of the "American people[s]"

More laws mean more $$/powers for the legal class; comparative advantage and all that. The public choice theorists are onto something as are the Marxian critiques of law, I know you are familiar with them. It is why there are neo-anarchist and libertarian "subcultures" in the US and if the legal class doesn't show some restraint in it's zeal to keep us locked in 18th and 19th century notions of emotional/behavioral/cognitive "norms" there is going to be more and more uncivil unrest in the decades ahead. Nor is the answer more law schools cranking out more lawyers.

I for one, would vote, if we had the chance, for a constitutional convention. Have a lottery based on all the phone books in the country, pick out 300 people [no lawyers of course :-)] and let them write a new one. There have been scores of new constitutions written around the world in the last 25 years, many with the help of the US legal community. We need a new one too.

The WOD is the US gov. equivalent of the Church trying to stop Galileo; that they don't have the integrity to admit that shows just how far self-deception can wreak havoc on human life. Yes, there are signs of cracks in the edifice, due largely to committed activist/"druggies" and their allies. They could use some serious increases in help from the legal community, both in and out of government.


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