Massive Resistance
March 6, 2006 10:26 AM   Subscribe

Tom Parker writes that "State supreme courts may decline to follow bad U.S. Supreme Court precedents.... faithful adherence to the judicial oath requires resistance to [U.S. Supreme Court] activism...." Parker hopes that a lower court's decision against precedent might prevail, either because the U.S. Supreme Court's membership may have changed since the precedent was decided, or just by jamming the docket, "[b]ecause the U.S. Supreme Court can accept only a handful of the petitions it receives...."

So who is this Tom Parker who advocates a massive resistance to Federal Supremacy? A fringe nut? A southern succesionist? Why, he's just an Associate Justice of the Supreme Court of Alabama.
posted by orthogonality (42 comments total) 1 user marked this as a favorite
 
You see, my fellow Alabama justices let those niggers into the schools freed Adams from death row not because of any error of our courts but because they chose to passively accommodate -- rather than actively resist -- the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.
posted by three blind mice at 10:33 AM on March 6, 2006


A fringe nut? A southern succesionist? Why, he's just an Associate Justice of the Supreme Court of Alabama.

False dichotomy.
posted by Faint of Butt at 10:37 AM on March 6, 2006


After all, the liberals on the U.S. Supreme Court already look down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state.

Translation: could we have judges that are activist in a way that we heah in 'bama would like?
posted by telstar at 10:38 AM on March 6, 2006


From the second link:
...Parker became best known statewide several years ago as a spokesman for then-Chief Justice Roy Moore in his battle to keep a Ten Commandments monument in the rotunda of the judicial building....

Like Thomas, Parker believes that the establishment clause of the First Amendment does not apply to the states, so he insists a federal judge had no authority to order Moore to remove the monument. In November 2003 the state Court of the Judiciary, which reviews ethics complaints against judges, ordered Moore removed from office for defying the federal order.

Moore is now running for governor, and in the wake of his January op-ed (which ran months after Adams' death sentence was commuted), some think Parker's blast was the opening of a campaign for chief justice. Parker won't confirm the rumors....

In the afterglow of the Moore episode, Parker decided to run for the state Supreme Court against an incumbent who had been critical of Moore's efforts.

During the campaign, as documented by the Montgomery-based Southern Poverty Law Center, Parker handed out Confederate flags, made appearances with pro-Confederate groups, and attended a birthday party for the late Nathan Bedford Forrest, founder of the original Ku Klux Klan.
posted by orthogonality at 10:39 AM on March 6, 2006


So we don't have to abide by SCOTUS decisions we disagree with. Does this apply to laws as well? How about the entire Constitution? Come to think of it, let's chuck the whole thing and go make our own little town. Who's with me?
posted by JeffK at 10:40 AM on March 6, 2006


Here's the blog entry from How Appealing with links to commentary from law professors. The craziest thing about this op-ed is not its content, but that Parker used a newspaper column to criticize his fellow justices for a decision they rendered applying Roper v. Simmons. Parker had recused himself from the case because he had helped prosecute it before he went on the bench.

Apparently the Judicial Code of Ethics matters to this guy about as much as the U.S. Constitution.
posted by Saucy Intruder at 10:44 AM on March 6, 2006


In practical terms, assuming that some state had the stones to "resist" in this way, there are a number of ways that the fed could respond, in what seems to me like a reasonable order:
  1. restrict or curtail highway funding
  2. restrict, curtail, or rescind other federal grants, contracts, or entitlements
  3. enforce a ban on aircraft landing at in-state airports
  4. enforce the questionable decisions by force (obviously, depending on the decision, this could go at #1)
...because of course, as we all know if we think it through, the only thing that makes a law a law is that people obey it. If they choose not to obey it, in large enough numbers and with sufficient coordination, it no longer has force.

Well, ok, there is one other thing that makes a law have force: That people think it does.
posted by lodurr at 10:48 AM on March 6, 2006


secessionist
posted by shmegegge at 11:15 AM on March 6, 2006


See also: Roy Moore.
posted by fandango_matt at 11:15 AM on March 6, 2006


Do residents of a state which has seceded from the union still get to vote in presidential elections?
posted by Mitheral at 11:16 AM on March 6, 2006


Parker believes that the establishment clause of the First Amendment does not apply to the states,

Well, he is right about that.

But as for his suggestion that the Court can ignore the rulings of the Supreme Court, he is just wrong. Besides, any competent jurist knows that the you never ignore precedent; you just distinguish it to death.

This is what you call a fringe lunatic. They exist on both sides of the spectrum of the judiciary. An unfortunate number of judges don't understand their proper roles in the judiciary.
posted by dios at 11:20 AM on March 6, 2006


Parker believes that the establishment clause of the First Amendment does not apply to the states,

Well, he is right about that.


I'm not going to derail this thread, but I am still waiting for you to back up this statement. This topic would make a good FPP on its own; perhaps we can discuss it in a future thread.
posted by Saucy Intruder at 11:36 AM on March 6, 2006


So to correct the perceived wrongs of activist judges, he favors more judges becoming activist judges (by not adhering to the law)?

I need to move.
posted by dig_duggler at 11:41 AM on March 6, 2006


Yes, dios -- could you at least lay out the argument for that? Why would the establishment clause not apply to the states? I should think that an "original intent" argument would support applying it to the states, and certainly it's a practical impossibility for the Establishment Clause to have any effect if it doesn't apply to the states.
posted by lodurr at 11:49 AM on March 6, 2006




I explained it briefly here in a number of posts.

I could explain it further, but I doubt anyone would want me to do so. There are a plethora of law review articles making the point clear.

But let me offer the quick, dense version of it: The Establishment clause was drafted as a federalism protection. It was designed to prevent the federal government from encroaching on the right of states to establish religions in their states. It was not a protection of individual rights. The "Incorporation" clause of the Fourteenth Amendment is found in the discussion that citizens of the states shall not be deprived of the rights of the citizens of the United States. Basically, it extended all of the individual rights guaranteed under the Bill of Rights to the citizens of each individual state. Insofar as the Establishment clause didn't provide an individual right to citizens of the United States, once the First Amendment was incorporated to the states, it didn't incorporate the Establishment clause because it did not contain a guarantee of a privilege of immunity of a citizen of the United States. Thus, a textual reading of the Constitution makes clear that the Establishment Clause was not incorporated by the language of the Fourteenth Amendment. That should suffice as a brief explanation of it. (There is a mountain of writing on this topic if you are inclined to read more about it).
posted by dios at 11:59 AM on March 6, 2006


Yes, dios -- could you at least lay out the argument for that? Why would the establishment clause not apply to the states?

"Prior to the enactment of the Fourteenth Amendment in 1868, the Supreme Court generally took the position that the substantive protections of the Bill of Rights did not apply to actions by state governments. Subsequently, under the Incorporation doctrine the Bill of Rights have been broadly applied to limit state and local government as well." — Wikipedia
posted by IshmaelGraves at 12:03 PM on March 6, 2006


dig_duggler: I need to move

Take me with you.

[derail] Had to go to Columbiana today to pay a fine and on the way back passed a church billboard that read: "If you want to die, move to Oregon. If you want to live, stay in Alabama." This seemed both ominous and amusing. [/derail]
posted by BitterOldPunk at 12:20 PM on March 6, 2006


The issue is a little more nuanced then that quote from the Wikipedia, IshmaelGraves.
posted by dios at 12:20 PM on March 6, 2006


Nathan Bedford Forrest, founder of the original Ku Klux Klan.
Forrest was the first Grand Wizard of the KKK, but he was not the founder. The KKK began sometime in 1865; Forrest was elected Grand Wizard in 1867 and disbanded the national KKK two years later (to little effect because the local chapters were largely autonomous).
posted by forrest at 12:26 PM on March 6, 2006




First, it should be noted that the position that none of the bill of rights is incorporated by the 14th amendment is so far out of the mainstream of legal scholarship that it is rejected even by the most conservative justices today.

The Historical Basis for 14th Amendment Incorporation

/derail
posted by longdaysjourney at 12:36 PM on March 6, 2006


/derail
posted by shmegegge at 12:52 PM on March 6, 2006


First, it should be noted that the position that none of the bill of rights is incorporated by the 14th amendment is so far out of the mainstream of legal scholarship that it is rejected even by the most conservative justices today.

That is true. Luckily, neither this blowhard, myself, nor any of the other people suggesting the Establishment Clause was not incorporated are arguing that none of the Bill of Rights was incorporated.
posted by dios at 12:55 PM on March 6, 2006


If you want to die, move to Oregon. If you want to live, stay in Alabama.
I'd rather die in Oregon than live in Alabama.
posted by nlindstrom at 12:59 PM on March 6, 2006


I'd rather die in Oregon than live in Alabama.

Aw, C'mon. That's just mean.

Alabama has lots of awesome things. Just not politicians and judges.
posted by dig_duggler at 1:17 PM on March 6, 2006


So he's got his front teeth then?
posted by Smedleyman at 1:26 PM on March 6, 2006


Actually, dios, I am inclined to read more about it, and I think I will. And, can we ban wikipedia links in the blue. They rarely add anything useful.
posted by JeffK at 1:41 PM on March 6, 2006


And, can we ban wikipedia links in the blue. They rarely add anything useful.
posted by JeffK at 3:41 PM CST on March 6 [!]


I can't think of a less accurate statement.

Yes, practically all Mefites should be aware of wikipedia and able to peruse it themselves, but the same could be said of msn, cnn, google, apple.com, etc etc etc etc.
posted by Ynoxas at 2:36 PM on March 6, 2006


I can't think of a less accurate statement.

3*7=12
posted by cellphone at 3:24 PM on March 6, 2006


Yes, practically all Mefites should be aware of wikipedia and able to peruse it themselves, but the same could be said of msn, cnn, google, apple.com, etc etc etc etc.

What's google?

Sorry, I'm from Alabama....

I keed, I keed
posted by BitterOldPunk at 4:34 PM on March 6, 2006


This guy is clearly pretty crazy, but he is hitting on a fairly important issue. How do you deal with wrongly decided precedent decided by the Supreme Court. One approach would seem to be to give the Supreme Court the chance to reverse itself and explaining why the initial law was wrongly decided. This seems like it is probably the best approach, but it is hardly the only one.

If the Supreme Court interprets the Constitution incorrectly are lower courts bound to respect that interpretation? They are bound to respect the Constitution, but the Supreme Court's opinions are not the Constitution, they are opinions about what the Constitution means that can easily be wrong. Cooper v. Aaron does require lower courts to respect Supreme Court interpretation as law of the land, but that's a pretty poor foundation, given that it is also a Supreme Court opinion.

The main point is, if we completely surrender the interpretation of the Constitution to the Supreme Court, we've entrusted ourselves to their good behavior with it. Given the fact that Supreme Court has clearly gotten it wrong on a few occasions(Dredd Scott?), that seems like a poor decision.
posted by Bulgaroktonos at 9:41 PM on March 6, 2006


"if we completely surrender the interpretation of the Constitution to the Supreme Court, we've entrusted ourselves to their good behavior with it" - The Constitution sounds like your teenage daughter.

But, who do you suggest should be entrusted with its interpretation ? Oddly enough, the Supremes have had the job for quite a long time - to no obvious disaster.
posted by troutfishing at 10:04 PM on March 6, 2006


How do you deal with wrongly decided precedent decided by the Supreme Court.

If the Supreme Court interprets the Constitution incorrectly are lower courts bound to respect that interpretation?


Who else do you suggest to do that interpretation? The Congress? A national vote?
posted by stirfry at 10:06 PM on March 6, 2006


I'm not suggesting an answer here, just pointing out that these are questions we should think about.

Why do we completely trust the Supreme Court to interpret the constitution correctly? If we take it as the sole and infallible arbiter of the Constitution, then we don't have a real set of checks and balances, we have one dominant branch and others that work as it allows them.

Take the Dredd Scott decision, in that the Supreme Court interpreted the Constitution in a way that is rejected by pretty much everyone today, and many people at the time. How was a citizen of that era supposed to deal with an opinion that seems to run completely contrary to established law and constitutional interpretation?

At that time Abraham Lincoln suggested that while the decision was binding for the case of Dredd Scott, it need not be accepted as precedent, since is was so obviously wrong. He suggested testing it again, and again in the courts, until it was rightly decided, or until it became clear that the opinion against it was clearly a fringe element.

The point is, wrong judicial interpretations DO happen, even if the consequences aren't always dire. How do we deal with that? If you're a public official with an oath to the Constitution, do you have a duty to enforce that Constitution as you see it, or are you forced to enforce what you believe to be an error? It's not an easy question.
posted by Bulgaroktonos at 10:40 PM on March 6, 2006


As Justice Jackson plainly said, "We are not final because we are infallible, but we are infallible only because we are final."

The United States Constitution says and means what the nine justices decide it says and means. Period. Love it or hate it, that is pretty much the way the system works.

Questions such as "Why do we completely trust the Supreme Court to interpret the constitution correctly" are rather pointless, because you are introducing into discussion some subjective definition of a "correct" interpretation of the US Constitution. There is no such thing as a correct interpretation, really. Proponents of an idea of a living constitution will point to one set of cases that were, in their opinion, correctly decided, while advocates of textualism will have a diametrically opposite such list. And so it goes.

I suppose you can approximate a definition of a "correct" interpretation by stipulating a set of characteristics that such an interpretation must have, e.g. that it follows precedent, does not abrogate previous decisions, is sufficiently justified by the legal reasoning in the opinion, and so forth. However, I don't think that it is possible to offer a workable definition of a "correct" interpretation.

Dredd Scott is a terrible decision not only from its policy-making aspect, it is an atrocious decision from a strictly legalistic point of view. The main question there was whether the Court had jurisdiction to rule on the case. If it was decided that Dredd Scott was a citizen, then the legality of the Missouri Compromise could be examined. If the Court were to decide that he was not a citizen, this secondary issue need not be addressed.

However, Taney wanted to do both. He first says that Dredd Scott has no standing, but nonetheless goes on to review the other challenged issue. That is the problem. Lincoln did not suggest that the decision was "obviously wrong" and that it need not be accepted as precedent. Rather, he argued (correctly) that every part of the decision after Taney's determination that Scott was not a citizen was non-binding dicta.

Just out of curiosity, how would Brown v. Board fit into your scheme of correct / incorrect interpretation of the United States Constitution? As a policy decision, it's great. As a legal decision - well, you can barely call it one. No disrespect to Warren, but that opinion is much more a political statement than a reasoned and detailed legal argument. Would that make it ineligible for your classification of it as a "correct" decision, or does it not matter?
posted by Pontius Pilate at 2:02 AM on March 7, 2006


I haven't honestly looked at Brown well enough to have an opinion on that. I used because that is a pretty noncontroversial example of a bad decision.

I also think you're wrong about what Lincoln was saying about Dredd Scott. From a speech of Lincoln's from 1857:
"But when , as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, as having not yet quite established a settled doctrine for the country"

Semantics about the argument he is making aside, he is clearly saying that the country need not take Dredd Scott as precedent and that the court should be given opportunities to overrule itself.

Later on in that speech, he goes on to argue that each public official must interpret the constitution for himself, and cites the example of Andrew Jackson, who vetoed the national bank because he thought it was unconstitutional, even though the Supreme Court had said it was.

This idea that the Supreme Court is the last word on what the Constitution says is a fairly new one, and I think, and dangerous one. Other than saying "It's how the system works" why should we accept this state of affairs? Public officials take an oath to uphold the Constitution itself, not what someone else tells them the Constitution says. Shouldn't they have a duty to enforce their understanding of what is correct?

This does rely on a distinction between "right" decisions and "wrong" decisions. I'm not suggesting that we can know which decisions are "right" and which are "wrong". Still, completely losing the notion that the Constitution has one, plainly evident meaning and allowing the Supreme Court to tell us what it means opens the door to anarchy.

If the Supreme Court ordered that the Constitution required all men to wear purple hats, would we have to obey that ruling? If you accept that the "Constitution says and means what the nine justices decide it says and means", we have no defense against that, other than impeachment. We don't have an especially strong record of impeaching Supreme Court Justices, so I don't think we can trust that.

The ideology of subverting all branches of government to the judicial, which is what this is, make no mistake, seems incredibly dangerous and at odds with our history and the principles on which this country was founded.

posted by Bulgaroktonos at 8:26 AM on March 7, 2006


Bulgaroktonos,

You have an exceptionally strange view of the United States constitutional history, particularly when you say:

"This idea that the Supreme Court is the last word on what the Constitution says is a fairly new one, and I think, and dangerous one."

Read Hamilton's Federalist No. 78. Here's a relevant excerpt:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

If you wish to argue that this is an unhappy state of affairs, you are certainly welcome to do so. You cannot, however, ignore two hundred years of constitutional law development since Marbury v. Madison and pretend that the supremacy of the United States Supreme Court over the interpretation of the Constitution is some newfangled and dangerous trend.

You also quesiton why we should accept this state of affairs, and suggest that public officials have an oath "to uphold the Constitution itself, not what someone else tells them the Constitution says." Again, this is a non-issue if you accept the fact that the Constitution is what the Court says it is. The proposition then becomes:

Public officials have an oath to uphold the Constitution itself, not what someone else tells them what the Constitution says as defined by the Supreme Court.

Shouldn't they have a duty to enforce their understanding of what is correct?

I don't think it's a point of great debate that many public officials have a very poor grasp of the intricacies of constitutional law. Their understanding of what is "correct" is likely to be subjective rather than based on existing constitutional law, and this once again brings us to the unpleasant grey area of the subjective "correctness" of constitutional law.

The examples you posit are, frankly, outlandish. You say:

Still, completely losing the notion that the Constitution has one, plainly evident meaning and allowing the Supreme Court to tell us what it means opens the door to anarchy...If the Supreme Court ordered that the Constitution required all men to wear purple hats, would we have to obey that ruling?

Constitutional law has a tremendous inertia, and the Supreme Court is a lumbering giant. The Court is loathe to overturn settled law, and does so only when it becomes painfully apparent that the original decision was, to borrow a phrase from your lexicon, "incorrect." (Consider the fact that it took almost sixty years for Plessy v. Ferguson to be overturned, for example.) Though intelligent and reasonable minds can disagree on many aspects of the Constitution, there is also uniform agreement on many aspects of it that are open to the kind of a "plain meaning" interpretation that you mention. This plain meaning will not be overturned. The Court is not going to suddenly wake up one day and decide that the freedom to petition the government for redress of grievances does not mean that. It is not going to decide that the Thirteenth Amendment does not indeed prohibit involuntary servitude. Etc., etc., etc.

(By the way - the purple hat question? Yes.)
posted by Pontius Pilate at 10:02 AM on March 7, 2006


Pontius Pilate, you can claim that the Supreme Court will not suddenly decide that the 13th amendment does not prohibit involuntary servitude, but you can't argue that you haven't given them the power to do so if they chose to do that.

You should read Federalist 78 a little closer, as well. Hamilton says "the judiciary is beyond comparison the weakest of the three departments of power." The idea you've outlined is hardly in line with that, since it places the judiciary as the most powerful branch of government.

He also says "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." This suggests that the executive has a role in the enforcement of judicial opinions, beyond merely following them rotely.

The argument Hamilton is making is that Constitution is superior to legislative acts, and that is the role of the courts to declare when such acts are in conflict with the Constitution.

What he doesn't address is how to deal with a judiciary that makes an incorrect interpretation of the Constitution. You can argue that no such thing is possible, that the Constitution only means what the courts say it means, but that's incredibly dangerous. If the law doesn't mean what it says, but rather what a few people say it says, then we're not really a country ruled by laws. The rule of law requires predictability.

This is the problem with precedent that seems not be grounded in a correct understanding of the Constitution. If the Constitution says one thing, but a court says it say another, why privilege the court?

As for grey areas, they certainly do exist, but they provide an argument for bringing the issue before the court many times, until a firm precedent can be established. I don't mean to suggest that everyone should be applying his or her own constitutional standards all the time. Rather I mean that officials, like lower court judges, should feel free to rule based on the Constitution, as they understand it, in those cases where a clear rule has yet to be established. A single divided Supreme Court case, overruling itself and previously established law is hardly that.

As for the historical issues, I think you're dramatically overstating your case. Supreme Court opinions were not made the law of the land until 1958, with Cooper v. Aaron. The quotation I provided from Lincoln shows that he clearly thought that a single Supreme Court opinion was not always settled law as precedent.
Marbury vs. Madison established the power of the court to declare laws unconstitutional, but it doesn't really settle how to treat all the difficulties that arise from that power.
posted by Bulgaroktonos at 11:09 AM on March 7, 2006


Take the Dredd Scott decision, in that the Supreme Court interpreted the Constitution in a way that is rejected by pretty much everyone today, and many people at the time. How was a citizen of that era supposed to deal with an opinion that seems to run completely contrary to established law and constitutional interpretation?

Fight a civil war and pass three constitutional amendments. I'm not being glib. The 14th Amendment expressly overruled Dred Scott by declaring that everyone born or naturalized in the U.S. was a citizen and entitled to the privileges and immunities of citizenship.

This idea that the Supreme Court is the last word on what the Constitution says is a fairly new one

Anything from 1803, such as Marbury v. Madison, is not "new."
posted by Saucy Intruder at 11:13 AM on March 7, 2006


Suacy,
Dredd Scott was bad law even without the 14th amendment. It might not be a problem in 1866, but if you ignore what happened later, it presents a problem for dealing with in 1858.
posted by Bulgaroktonos at 11:17 AM on March 7, 2006


If the law doesn't mean what it says, but rather what a few people say it says, then we're not really a country ruled by laws.

"No person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V.

If this means what it says, then what does it mean? The drafters never intended that a plain meaning analysis apply to the entire constitution. That would make at least half of it unusable. The Constitution arose out of compromise; and compromise requires as broad and vague a concept as you need to get a sufficient number of people on board. Just like any statute that is passed by Congress or a state legislature. The bloody innards get sorted out by administrative agencies and the courts.
posted by Saucy Intruder at 11:19 AM on March 7, 2006


You should read Federalist 78 a little closer, as well. Hamilton says "the judiciary is beyond comparison the weakest of the three departments of power." The idea you've outlined is hardly in line with that, since it places the judiciary as the most powerful branch of government.

He also says "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." This suggests that the executive has a role in the enforcement of judicial opinions, beyond merely following them rotely.


Right. Hamilton says that the judiciary is the weakest branch because it wields neither the sword (executive) nor the purse (legislative). That is no longer true. Ultimately, the Supreme Court must rely on the executive and legislative branch to implement and enforce its decisions, which is a sufficient (if implicit) check on its judicial review abilities. SCOTUS knows that it cannot force the executive / legislative's collective hand too much because it then runs the risk of an open confrontation. In addition to the other aspects of the judiciary I've mentioned above that create a stable, largely predictable body of constitutional law that we have, this is yet another such check on the judicial branch. This is why SCOTUS is rarely very much out of step with the contemporary attitudes of the society - having an incident such as Jackson saying "Marshall has made his decision; now let him enforce it" leaves a black mark upon the Court that is surely seeks to avoid.

What he doesn't address is how to deal with a judiciary that makes an incorrect interpretation of the Constitution. You can argue that no such thing is possible, that the Constitution only means what the courts say it means, but that's incredibly dangerous. If the law doesn't mean what it says, but rather what a few people say it says, then we're not really a country ruled by laws. The rule of law requires predictability.

Your conclusion only makes sense if you accept that the nine men and women on the Court have no respect for the existing rule of law, and will bypass and abrogate earlier decisions for no good reason. I cannot see how you can maintain that point of view.

This is the problem with precedent that seems not be grounded in a correct understanding of the Constitution. If the Constitution says one thing, but a court says it say another, why privilege the court?

If any court says the Constitution says something else, that's not enough. If THE SUPREME COURT decides it says something else, that's what it is. You seem genuinely surprised that the Supreme Court has the ability to interpret the Constitution, which is baffling. Hell, many of the freedoms you and I and everyone else takes for granted would not exist today had the Court not incorporated the Bill of Rights to apply to states via the Fourteenth Amendment. That is an interpretation of the Constitution by a court, but the results have generally been felicitous.

Rather I mean that officials, like lower court judges, should feel free to rule based on the Constitution, as they understand it, in those cases where a clear rule has yet to be established.

Anyone short of Supreme Court justices must follow existing precedents. You don't get to decide as a state judge that your interpretation of the United States Constitution is correct and that of the Supreme Court is wrong. I am not sure what you mean by an existence of a clear rule - in the vast majority of cases today, there exist if not rules than at least guidelines from earlier decisions that serve as precedent. There are really no "blank slate" cases anymore.

As for the historical issues, I think you're dramatically overstating your case. Supreme Court opinions were not made the law of the land until 1958, with Cooper v. Aaron. The quotation I provided from Lincoln shows that he clearly thought that a single Supreme Court opinion was not always settled law as precedent.
Marbury vs. Madison established the power of the court to declare laws unconstitutional, but it doesn't really settle how to treat all the difficulties that arise from that power.


Cooper v. Aaraon simply reasserted what had already been accepted for many years. The simple fact of the matter is that ever since Marbury v. Madison, the Court has remains the final arbiter and has not been a co-equal branch. The difficulties that arise from such disagreements can indeed be problematic (as I've mentioned above), but there is no real debate that Supreme Court's rulings will inevitably be followed by the other two branches.
posted by Pontius Pilate at 11:49 AM on March 7, 2006


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