Quote:
Originally posted by sgtclub
1. I am not a conservative
2. I already acknowledged that I thought Hatch was equally wrong.
3. How is this judicial activism?
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1. No -- you're proposing something profoundly unconservative.
2. That's why I asked about stare decisis. Because in our legal tradition, people who interpret the law -- constitutional or otherwise -- are supposed to at least pretend to heed how others before them have construed the law. But just saying "Hatch was equally wrong" doesn't do that. The fact that Hatch acted that way years ago -- as, indeed, has the Senate for all the years that it existed up to now -- demonstrates, in our system, that they the Constitution has been interpreted in a certain way. Living with the rule of law means that ordinarily, you don't just toss out the way a provision or principle has been interpreted and start from scratch again. Let me put it in terms you would understand: Suppose that property rights were up for reconsideration, soup to nuts, every time the government wanted to do something that might be a taking. Suppose you just ignore how those property rights have always been understand, and start from first principles again. Doesn't sound like the rule of law now, does it? (If you're the property owner, do you feel better when the judge says, "Oh, and I'll admit that those other judges were wrong"?)
3. I said a "variant" because the people interpreting the Constitution here are Republican Senators, not judges. But they are at pretending to be construing the law, not just making it up, although I think we all know better. Republicans usually at least profess to be bent out of shape when judges locate new meanings in constitutional principles that hitherto have never been understand that way before. Unless you found something from Madison or Hamilton that you haven't been telling us about, that's what's happening here.
