Sent from my iPad
On Sep 20, 2012, at 7:01 AM, Wojtek S <wsoko52 at gmail.com> wrote:
> Andie: "The federal judiciary has been politically conservative, no
> doubt, on balance and over time. I'm not sure that the founding era is
> particularly relevant or illuminating today. But the current right
> wing activist SCOTUS is certainly as typical or more of the federal
> courts than the liberal activist Warren Court era, and unfortunately,
> more than the judicially conservative courts of the New Deal Era."
>
> [WS:] But this does not seem to address the central claim of my
> original argument, which is that the legal system as a whole acts as a
> brake on any potential progressive legislation. It is not that we've
> had much of the latter, or that we have progressive legislature held
> back by reactionary judiciary - but rather that the existing legal
> framework makes any reform that favors "common people" over elites
> DOA, even if by some odd chance it passes in the legislature. That
> fact by itself has a very conservative effect on the legislature - ash
> no rational person would be willing to expend his or her political
> capital on measures likely to be overturned by courts after they pass
> the legislature. This is not the issue of the common vs. civil law or
> sources of law as you argue but rather the fact that the US
> constitution guarantees very few rights to begin with, but those few
> that it does guarantee are the private property rights. That makes it
> much easier to overturn any legislation aiming to expand human rights
> (i.e. one expanding the rights of common people over those of the
> elites) on the grounds that it infringes on the constitutionally
> protected private property rights.
>
> Again, this has little to do with technical or formal aspects of the
> law, on which you seem to be concentrating, but with the substance
> that favors elite private property ueber alles. It is like an uneven
> playing field or an uphill battle - you can still play or fight, but
> your chances of winning are drastically reduced. Nor does it mean
> that the 99 percent cannot score an occasional victory, but for every
> such victory the elites will score ten, which will more than nullify
> the former.
>
> I would also like to underscore that the legal system is not the only
> force pushing into this direction. There are others - the
> legislature, the media, the punditocracy and their institutions,
> organized religion, and most importantly - the powerful business
> sector. But I raised the argument focusing on the legal system to
> counter the liberal and left-wing arguments that put the blame
> squarely on the executive branch of the government, especially the
> POTUS. As I said before, the executive and legislative branches
> appear more conservative than they otherwise would be due to the
> conservative effect of the US legal system that has the capacity to
> gut any legislation that threatens elite property and interests.
> --
> Wojtek
>
> "An anarchist is a neoliberal without money."
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