Reply #13: Maybe you're not getting what "checks and balances" means. [View All]

[RaleighNCDUer]

The Supreme Court is the check on the power of the executive and the legislative branches. In a panic situation, like after 9/11, the legislature can be stampeded into passing laws that are, shall we say, ill-advised. (Patriot Act, anyone?) The Supreme Court's duty is to decide if that law is in accordance with the constitution -- which is not simply a framwork upon which the law hangs, but the ultimate law of the land.

We can't forget, Hitler's seizure of power was not complete until he had taken control of the judiciary -- control the people who decide what is and is not legal, and you control the nation. Our system reaches beyond the amalgam of laws in the US Code, to have the final say rest in the constitution itself. Legislatures can write and amend laws at the whim of a temporary majority, but the constitution can only be changed through a deliberately arduous process -- that is the only thing that protects us from the panic of the populace. No matter how bad things get, the constitution prevents us from voting away our liberties in the face of a temporary crisis.

The supreme legislative power does lie with an elected body - the congress. That is what it's job is. But a law passed by congress still must stand the test of constitutionality. And that is the SC's job. It is the constitutionality court. Deciding what is law rests with the lower courts, up to the US Court of Appeals. But it is the SC that decides if the law is legal. There is a counter-power to the Supreme Court, and that is the process by which the constitution is amended. Laws agasint flag burning, for instance, could be declared to be unconstitutional violations of the 1st amendment, but a anti-flag burning amendment could not be unconstitutional because it would be part of the constitution, until it was again amended out of existance (like Prohibition was).

That is why we cannot allow Alito to sit on that court. He is beholden to corporate interests and a RW ideology that believes in the 'unitary Executive' despite there being no basis for that in the constitution. IOW, he would subvert the constitution for his political ends, and it could be decades before we could return to democracy.

Freedoms can be lost, if the SC works in conjunction with the legislature to subvert the constitution. In the 17th and early 18th century there were many black landowners in the south, but their holdings were legislated out of existance by the 19th century -- the descendents of free native-born blacks found themselves enslaved. After the Civil War, the franchise was granted to the freed slaves, but over the next 40 years that franchise was stripped away by legislatures and a compliant Supreme Court to where, in 1900, there were parts of the country where not a single black vote was cast or counted. And this was AFTER the 14th amendment was passed.

An amendment that protects privacy should not be passed merely to protect the right to an abortion. It would be to clearly protect the rights suggested in the 4th amendment, protecting the indiviual's security from warrantless search -- if a warrant is needed to search a residence or person, the implication is that a right to privacy is pre-existant, making that warrant necessary.

I hope you take this little lecture in the spirit it was offered, because your suggestion that the constitution was "only a frame that presents the rules of the game" really pissed me off.