--- Justin Schwartz <jkschw at hotmail.com> wrote:
>
>
>
> >
> >well, there is a bit of a temporal gap between the
> >majorities you cite,
>
> ?? Lost me there.
>
ED:> the cite was to the (super) majority passing the 14th amendment and the majority passing civil rights (or something like it) -- it was a non-point
>
> and given the disenfranchisement
> >of so many Americans the majority was even bigger
> for
> >the 14th Amendment (as you would no doubt agree).
> I
> >do get your point.
> >
>
> Good.
>
> >However, even with that said, the Court is an
> >undemocratic institution founded on an
> >extra-constitutional premise expounded by the Court
> >itself.
>
> You are objecting to judicial review, a rather small
> part of the business of
> the courts. I have written around 150 cases for the
> appeals and district
> courts. Setting aside the section 1983 cases and the
> habeas cases which
> challenge the costitutionality of govt actions,
> e.g., police beatings or
> acts of discrimination, but not the
> constitutionality of legislation, maybe
> 15 of them have involved constitutional questions.
> Exactly one has
> challenged constitutionality of a piece of
> legfislation--a first amendment
> attack on a local ordinance. It was entirely
> justified, and the opinion
> struck down the ordinance. You're on WEstlaw, you
> can look it up: Weigand v.
> Tinley Park (N.D. Ill. 2000), it's short and fun.
> Most of the business reven
> of the Supreme Court is statutory interpretation,
> not judicial review.
>
Yes, but we are talking about rights here, and rights means Constitutional principles, which entails judicial review.
> Nowhere in the Constitution is it indicated
> >which of the three branches decides the
> >consitutionality of the acts of government. That
> >exists only in Marbury.
>
> Not at all. It now exists as an unchallenged part of
> the constitutional
> order, cemented by a lot of precedent. Marshall was
> right that it was
> probably contemplated by the framers. Anyway,
> precedent is law too in a
> common law country like ours.
>
Given that Madison was on the losing side of that case, I do not see why you would conclude that. As for the role of common law, that is a good topic for another thread.
> I deny that judicial review is undemocratic. It is
> so only if you define
> democracy as sinmple majority rule. I don't. Taht is
> one way of realizing
> democracy, not the only one. Insofar as judicial
> rebview is directed to
> maintaining the conditions of democracy, preventing
> disenfranchisement or
> oppression of minorities, or maintaining the freedom
> of speech or
> association, it is democratic. Read Ely, Democracy
> and Distrust, not the
> last word, but a good book.
"In so far"....look at the Supremes now and tell me if your point still applies. Just look at the ADA and voting rights cases, wait uintil the affirmative action cases get there and tell me in they are "preventing the disenfrancisement of minorities" Look at Bowers, look at Adarand, look at the death penalty.
If the court is a democratic insitution only when it services a robust democracy, then it ain't democratic now.
> >As for civil rights, there is a sense in which I
> agree
> >with nathan -- the forces on the ground certainly
> made
> >change possible.
>
> So do I. Though it was both: Brown inspired the
> activism on the ground.
It may have inspired white activism, but Marshall and other African Americans had been fighting the fight for some time on the ground. I agree with you though
> The idea of meaningful civil rights
> >was percolating through the country when the Court
> >decided Brown. However, Brown gave civil rights
> the
> >legitimacy of law, which matters to the mushy
> middle.
>
> And matters to making it effective!
that the current court would undo.
eric
> jks
>
>
_________________________________________________________________
> Get your FREE download of MSN Explorer at
> http://explorer.msn.com/intl.asp.
>
__________________________________________________ Do You Yahoo!? Yahoo! Tax Center - online filing with TurboTax http://taxes.yahoo.com/