THIS BLOG IS MY BLOG. THIS BLOG IS MY BLOG. Welcome to the Home of Hyperopia.: On the Separation of Powers - Part 2

Friday, October 28, 2005

On the Separation of Powers - Part 2

Ron Paul has filed yet another important report highlighting the manifest misunderstandings attending the role of the federal judiciary in America.


These sentences explain the reasons the judicial nomination process occasionally devolves into an outlandish spectacle include:
  • Federal courts ... have become unelected, unaccountable purveyors of social policy for the entire nation. Bitter partisan fights over Supreme Court nominees are inevitable simply because so much is at stake.

That is simply the truth. Of course that doesn't answer the question why? As in, why have the federal courts become purveyors of social policy for the nation? Somebody else has written about this reaching a similar conclusion, although I don't remember who and I can't find where, but I think there are two primary reasons this is the case.

The first reason goes back to Marbury v. Madison (at least I think that is true; remember, you are reading an analysis of the structure and history of the government of the United States as written by a person who earned a C- in Constitutional Law in law school). You see what happened was:

The people who put our government together generally had an agreement that there would be checks and balances whereby: (1) the extent to which the group that spends far too much time writing laws could screw things up for the general populace would be limited by (2) The Big Dog at the top of the heap who can decide whether to reject laws presented and (3) the group that was supposed to compare the substance and breadth of the laws enacted by the busy-bodies and the implementation and enforcement of those laws by The Big Dog to the limitations imposed by the founding (constating?) documents of the country.

But Supreme Court Chief Justice Marshall understood that out of that scrum whoever got to go "last" would have something of a dominating position. Recall the aphorism: he who laughs last laughs loudest. So in Marbury, he authored an opinion basically seizing the last laugh for the judicial branch. And in some bunch of other opinions that I can't identify (C-, remember), the federal courts decided to ignore the Tenth Amendment to the Constitution to the degree that many issues of local or state concern have been federalized during recent (and not so recent) decades.

(As an interesting (from this author's perspective, anyway) sidenote to this discussion, here is what current Chief Justice Roberts said during his confirmation hearings in response to a question about whether he thought Congress could, constitutionally, limit the jurisdiction of the federal courts by specific legislation (the relevant portion of the transcript is here):

"Well, I don't think -- on the question of
legislative attempts, I think my view is
the same now as it was 24 years ago, which
is that these are -- it's a bad idea. It's bad policy.

I was talking about the other question about
whether it's constitutional or not. And on that,
of course, I don't think I should express a
determinative view because, as you know,
these proposals do come up and one may be enacted.")

But I digress ...

The point of all this is that, rightly or wrongly, the federal judiciary is political. In no small part because the federal courts generally get the last say. So, one way to look at this is ... when a group of folks interested in living a particular way or having a particular rule be the law of the land lose their fight in one of what have now become the lesser venues (federal or state legislatures, federal or state regulatory agencies, state courts) , they take their fight to the federal judiciary. Accordingly, these groups of folks have a keen interest in the identity and ideology of the people who will be there to listen to them, to "hear their case" as it were.

This post was written before Harriet Miers withdrew her name from consideration for a Supreme Court position. That is an interesting topic in its own right. I'm annoyed at people asserting Ms. Miers wasn't qualified. Just because she wasn't a judge before. As Ron Paul noted in the article linked above, that's ridiculous.


Anonymous Anonymous said...

Words, words words.

8:33 AM, October 28, 2005  
Anonymous Anonymous said...

To Bill Brasky

9:52 AM, October 28, 2005  
Blogger FLAMINGO1 said...

Constitutional law is intriguing. Really, it is!

I long for the days when the members of congress were part time and the rest of the year they worked their farms/businesses.

State's Rights are dead. I realized that when our latest Supreme Court Chief Justice made the argument that states do not have the right to establish their own assisted suicide laws. How will they boot strap thatt one into being federal jurisdiction, I wonder. Might they use the commerce clause to argue that by dieing, I stop purchasing stuff in the stream of interstate commerce and thus they have the right to regulate that?

In any event, the Republican party used to be the small government/state's rights party. But I guess that philosophical position is dispensible if by adopting a counter position you can advance your party's real agenda which appears to be the abortion/right to life platform.

I'm out. I am officially a Libertarian as of this moment.

Bill Brasky was a mean drunk.

10:47 AM, October 28, 2005  
Anonymous States Rights Gist said...

the word 'that' is spelled with two t's. One at the beginning, and one at the end. NOT two t's at the end.

I guess you have some more apologizing and crying to do.

There is a tear in my beer.

Long live the Confederacy

10:52 AM, October 28, 2005  
Anonymous Cosby said...

Flizzle fluzzle wuzzle.

Jello Pudding Pops.

11:02 AM, October 28, 2005  
Blogger Dongley Shlongford said...

Poop spelled backwards is: Poop.

11:40 AM, October 28, 2005  
Anonymous Anonymous said...

Speaking of beer...has anyone tried Shiner 96??

11:41 AM, October 28, 2005  
Blogger FLAMINGO1 said...

I will never apologize to you states rights gist. It is my God given wright as an American too speell badly and right like an unedukated wall-mart shopper.

Your name should be State's Rights Gist, Mr. Gist. Remember, "State's" is possessive. The rights belong to the state...or at least they used to.

12:15 PM, October 28, 2005  
Blogger Dongley Shlongford said...

I require a fluffer to get into constitutional law as well....

12:49 PM, October 28, 2005  
Anonymous Anonymous said...

Schlitz 85.
Try it, you'll like it.

1:18 PM, October 28, 2005  
Anonymous State's Rights Gist said...

Yes FLMNG 1, you are correct.
I have been dead for almost 155 years, so I have lost some of my typing skills.

1:27 PM, October 28, 2005  
Anonymous Anonymous said...

Where are all the white women at?

2:16 PM, October 28, 2005  
Anonymous Anonymous said...

This blog is a Nazi dictatorship, censored by a duck loving, hurrican dodging never was.

2:18 PM, October 28, 2005  
Anonymous Anonymous said...


2:20 PM, October 28, 2005  
Blogger Dongley Shlongford said...

Sounds like you need to enjoy the calming properties of Polynesian Cartography.

2:24 PM, October 28, 2005  
Blogger FLAMINGO1 said...

Garrett may be a duck loving, hurricane dodging, never-was, however he is a loveable Nazi...sort of like the Nazis in Hogan's Heros. Just too zany and loveable to be involved in genocide.

3:32 PM, October 28, 2005  
Anonymous garrett said...

he also likey the poopy

3:58 PM, October 28, 2005  
Blogger FLAMINGO1 said...

There you go again, Bizzarro Garrett. You have such a fantastic ability to turn a fecal phrase!! Bravo!

5:16 PM, October 28, 2005  
Blogger Chris said...

Is Ron Paul your congressman?

9:29 AM, October 30, 2005  
Blogger garrett said...

Chris - in the most accurate sense of the words, Ron Paul is America's congressman. He is the only Representative I know who truly advocates for the broader interests of all Americans.

But no, to my regret, I do not live in Ron Paul's district. Ron Paul's district is along the Texas gulf coast. It's close to here, but we don't live in it.

Tom DeLay is the Congressman for where I live.

2:33 PM, October 30, 2005  
Blogger Complete Game said...

Who's Ron Paul? And where'd that one dude find the pci of the donkey with a boner?

11:34 AM, October 31, 2005  
Anonymous Anonymous said...

that donkey is hung like a yak

12:10 PM, October 31, 2005  
Blogger Dongley Shlongford said...

Just who are you calling a Donkey?

8:25 AM, November 01, 2005  
Blogger Dongley Shlongford said...

That's flaccid baby!

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