Let's talk about REAL "Judicial Activism"

Jun 2015
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1,386
Minnesota
It goes far beyond the Federalist Papers. The direct link to the Magna Carta, Coke, the Bible, English common law, etc. regarding the structure, and basis of the Constitution and the Bill of Rights.

Bork made Biden look like someone who was kicked out of school for plagerism, which he was. The difference between the two was a living Constitution (Biden), which is antithetical to a written Constitution (Bork), and the rule of law (Bork), which is antithetical to a living Constitution (Biden).
Yes, our system is firmly rooted in British traditions, of which Hamilton and Madison were avid admirers, dating back to Magna Carta. That is true. You forgot Blackstone's commentaries, btw. But I also believe the Founders of the American system anticipated AND INTENDED that the Constitution they created would be flexible enough to adapt to changes over time. It is this kind of foresight that has allowed the system to expand and become more inclusive without having to be fundamentally changed and/or revised in its written form.

I believe that is why they included Article I, section 8, cl 18, to allow Congress to extend its reach when needed. It's why Hamilton argued against Jefferson and the Republicans that a National Bank was perfectly legal, because it was not expressly authorized by the Constitution but neither was it prohibited, despite the fact that the banking industry in America for nearly two centuries had been managed entirely by the States. It's why they included Articles V and VI, so that the Constitution could be amended as necessary and still be binding on States that voted against ratification.

If there is anything in our Federal System that the Founders might have not necessarily intended, it was the elevation of the Federal Courts to a position of equality with the other two branches, with the power to rule from the bench on matters pertaining to the Constitution. I think they may have "intended" the Court to rule strictly on civil matters and/or disputes between the other competing branches, NOT necessarily to have the power to strike down legislation and/or executive action as unconstitutional and void on their merits.

What do you think?
 
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Jun 2012
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Barsoom
Yes, our system is firmly rooted in British traditions, of which Hamilton and Madison were avid admirers, dating back to Magna Carta. That is true. You forgot Blackstone's commentaries, btw. But I also believe the Founders of the American system anticipated AND INTENDED that the Constitution they created would be flexible enough to adapt to changes over time. It is this kind of foresight that has allowed the system to expand and become more inclusive without having to be fundamentally changed and/or revised in its written form.

I believe that is why they included Article I, section 8, cl 18, to allow Congress to extend its reach when needed. It's why Hamilton argued against Jefferson and the Republicans that a National Bank was perfectly legal, because it was not expressly authorized by the Constitution but neither was it prohibited, despite the fact that the banking industry in America for nearly two centuries had been managed entirely by the States. It's why they included Articles V and VI, so that the Constitution could be amended as necessary and still be binding on States that voted against ratification.

If there is anything in our Federal System that the Founders might have not necessarily intended, it was the elevation of the Federal Courts to a position of equality with the other two branches, with the power to rule from the bench on matters pertaining to the Constitution. I think they may have "intended" the Court to rule strictly on civil matters and/or disputes between the other competing branches, NOT necessarily to have the power to strike down legislation and/or executive action as unconstitutional and void on their merits.

What do you think?
Solid assessment. I do not agree completely, but that is what make the world go 'round.

My mild disagreements:

The Ninth Amendment arose out of fear of the use of a broad interpretation of the necessary and proper clause, and Wilson expained its limitations.

The Constitution was protection against human nature as much as a governing document. Human nature hasn't changed. Also, the founders all were originalists as they stated that interpretation should always use the original intent.

I understand you are a living Constitution advocate and you have your reasons, and I respect that you do not cloak that ideology in some linguistic game and are upfront about it. It makes for an honest and civil debate. I am an originalist and I have my reasons and am also upfront about it. You understand the subject matter well and seem to have take a similar route as me to arrive where you are today regarding your understanding. Sometimes history and the law can be a Rorschach Test and we see what our subconscious compels us to see.
 
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Jun 2015
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Solid assessment. I do not agree completely, but that is what make the world to 'round.

My mild disagreements:

The Ninth Amendment arose out of fear of the use of a broad interpretation of the necessary and proper clause, and Wilson expaine its limitations.

The Constitution was protection against human nature as much as a governing document. Human nature hasn't changed. Also, the founders all were originalists as they stated that interpretation should always use the original intent.

I understand you are a living Constitution advocate and you have your reasons, and I respect that you do not cloak that ideology in some linguistic game and are upfront about it. It makes for an honest and civil debate. I am an originalist and I have my reasons and am also upfront about it. You understand the subject matter well and seem to have take a similar route as me to arrive where you are today regarding your understanding. Sometimes history and the law can be a Rorschach Test and we see what our subconscious compels us to see.
Very true.
 
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