Wednesday, May 07, 2008
Supreme Court as a centralizer?
Today in class we talked about the role of the Supreme Court in centralizing the power of the Federal Government. It was an interesting discussion the main point of the lecture being that over the years pretty much regardless of the political makeup of the court. They tended to move to rule on cases in such a way to give legitimacy to Congress and the office of the President. They most often showed this when they would rule on cases where states made attempts to limit federal power with most of this involving Constitutional state law. An example the Professor gave was Brown vs the Board of Education. He contended that really what the Supreme Court is doing is to rule in such a way that it often drags more reluctant states along so that their laws become more consistent with the rest of the Nations laws and the laws of other states. As always I am open to anyone thoughts?
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2 comments:
"An example the Professor gave was Brown vs the Board of Education. He contended that really what the Supreme Court is doing is to rule in such a way that it often drags more reluctant states along so that their laws become more consistent with the rest of the Nations laws and the laws of other states."
Well... sure... of course. I would only add that it is not the laws they are seeking to become more "consistent" with, but the ideology of the legislators and judiciary.
When Law ceases to be the objective defense of Rights, and instead seeks to be the arbiter of fairness... then the objectivity of law is reduced, the inviolability of Rights is lost, and fairness becomes a Fig for ideology. Brown vs Board of education is rubbish in any legal sense. If you read the transcripts and decision, they could find no legal basis, but based it on sociological studies which concluded feelings were hurt by segregation. The argument that parents, had the right to expect and demand that their children receive the exact same quality of education as other parents for their tax money... was undermined by the erosion of property rights and contracts begun back in Lochner(?), and of course the parents rights to oversee their children’s education was already nullified by the state mandating that IT had more right to their education than the parents did. When you've already undermined Rights, property rights and parental rights in an argument based upon the direct violation of those rights to begin with (State mandated and provided education)... what're you going to fall back on to bring about the decision you want to have made?
Any emotional excuse you can make seem substantial.
And that becomes precedent for further decisions... Miranda... etc. Roe vs. Wade, as blatant an example of Individual and Property Rights as there ever was... the Law operates in an objective defense of the rights of individuals in society, has no business in a decision about someone not yet in society (the baby), and in extreme violation of the woman’s property in her own body... but again having abandoned any and all pretence to defending individual rights in the face of societal 'rights' (in this case taken by the conservatives declaration that society has more right than she over her decisions and body)... what are you going to fall back on? Penumbra's of rights and other such gibberish works just fine.
Problem is, that then the Law is at the service of whichever ideology is prevalent among the judiciary, and we become a nation of men, not laws.
The Law is Force, if it is used in anyway other than in defense of clearly objective infringements upon rights, if it is used to pursue and bring about 'fair' goals... it ceases to be objective law and becomes a loose cannon.
Duck.
ha, I am going to experiment my thought, your post bring me some good ideas, it's truly awesome, thanks.
- Norman
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