"F. George McDuffee" wrote in message
...
On Sun, 18 May 2008 13:04:01 -0400, "Ed Huntress"
wrote:


"F. George McDuffee" wrote in message
. ..
On Sun, 18 May 2008 10:40:04 -0500, F. George McDuffee
wrote:

snip
FWIW -- the average age of the current US supreme court is now
68, which helps explain why SCOTUS cannot seem to relate to the
problems and concerns of the people in the current times.
http://en.wikipedia.org/wiki/Supreme..._United_States
http://en.wikipedia.org/wiki/Demogra...d_St ates#Age
snip
---------------
I just got an interesting email from a reader *NOT* in the United
States pointing out another possible reason for SCOTUS
indifference to the concerns and problems of the majority of
citizens.

George, what particular decisions do you feel reflect "indifference to the
concerns and problems of the majority of citizens"?
==========
I would start with the "imminent domain" cases where the local
pols seize private property to be transferred to private
individuals and companies on the grounds this will "revitalize"
an urban area or improve local tax revenues.

You're talking about the Kelo case. I'm sure you realize that the courts in
America deferred to local governments on matters of eminent domain even
before the country's founding. These cases are matters of state or local
governments making the initial claim of domain, which was never successfully
challenged for the first century or so in the country's history, and the
Supreme Court is deferring to them, once again.

It's a very originalist interpretation and it has a long and generally
favorable history. If you look at the cases that applied the "public
purpose" rule, such as Berman v Parker (1954), you'll see that the Court
said that the purpose had to be "public" and then decided that a
construction project that would clear "blighted areas" fit that definition.
And that was a very liberal, activist Court. One wonders what they would
have decided if the area had not been blighted. I doubt if even the 1954
Court would have told the state (or D.C., in the Berman case) how to define
"blight." In 1981, the Michigan Supreme Court decided that Detroit or
Dearborn (I forget which) could clear an area of "blighted" homes to build a
new GM plant.

The principle has been around for a very long time. People are getting
incensed because local governments are using it to solve budget problems,
rather than to do something more clearly, and more permanently, for the
public good. The problem, though, is with state and local governments.
You're suggesting that the US Supreme Court should dictate to the states how
they must interpret "public purpose." I'm sympathetic to the goal, but not
to the method. I agree with the Court in general that this is a matter for
locally elected legislatures to decide for themselves. It's too bad that
most of them suck. g That's why I don't get misty-eyed about state's
rights, or about deferring anything that may infringe on individual rights
to local governments. But it *is* a strong Constitutional principle.

What's needed, if the states won't do it themselves (some have) and if we
want to change it, is a constitutional amendment preventing it. I think it's
a big enough issue that an amendment would have a good chance of succeeding.
Otherwise, there's nothing inherent in the 5th Amendment that limits how
local governments have to define "public purpose." The whole thing is the
case of the Supreme Court making an unpopular decision, but one which is
based on long traditions of deferring to the states.

...[There are many
others, generally involving pension funding and corporate
stockholder "rights"] A closely related situation is the rush by
the pols to sell public property [to "balance the budget"] such
as roads at fire sale prices to for-profit companies that then
charge the public to use the facilities their taxes paid for.
http://www.washingtonpost.com/wp-dyn...062300783.html
http://www.post-gazette.com/pg/06169/698927-84.stm
http://www.heartland.org/Article.cfm?artId=14921

Again, that's a problem with legislatures, including Congress, not with the
Supreme Court. The Court isn't a watchdog for what most people would like to
see happen. The whole system assumes that the people's will be decided
through elected legislatures. The Court's job, among a few others, is to
make sure they don't infringe on individual rights. This isn't a case of
individual rights.



And how should current
"concerns" influence decisions about constitutionality of laws? After all,
that's basically what they do.
---------------
Legal cases are not brought in a vacuum [if they are, that's what
is called a moot court which is an academic exercise], and the
tacit/implicit contextual factors are frequently more important
than the written law, which may be ambagious, or as frequently
occurs, several legal conflicting legal theories or precedents
apply. Also experience may show that certain assumptions or
pre-conditions were not correct or changed over time.

A prime example of this is Brown v. Board of Education of Topeka,
347 U.S. 483 (1954 which reviewed the results of Plessy v.
Ferguson (1896).
http://en.wikipedia.org/wiki/Brown_v...d_of_Education

IMNSHO, the ruling of Plessy v. Ferguson of "separate, but equal"
was correct for the time and the legal situation as it was then
understood.

You're mixing up some different principles here. Plessy was decided on the
basis of what was known (or assumed) at the time; so was Brown. But they
were seeking to fulfill the same principle of rights.


The problem was [and would be again] is that the word "SEPERATE"
was easily heard and understood, while the qualifier ", but
equal" was widely ignored. By 1954, the schools, curriculum,
equipment, etc. for the majority students had seen very
considerable progress/improvement, while the schools, curriculum,
equipment, etc. for most "separate, but equal" minority schools
had not, which in [too] many cases remained at or about the 1896
levels.

The serious and increasing adverse aggregate socio-economic
effects of this growing disparity in education availability, on
the national economy/society, were well documented by Gunnar
Myrdal in his book "An American Dilemma: The Negro Problem and
Modern Democracy." [FWIW -- this was admitted as evidence for
its factual data, and not its legal theories.] Thus there were
not only serious equity/chancery questions raised, but also
undeniable and increasing serious questions of national economic
impact (and on social stability resulting from the economic
effects), with the result that "Brown" supplanted "Plessy."
==Our increasingly deaf financial and corporate management would
do well to pay attention to this case.==

This "Ivory Tower" problem is greatly exacerbated when the judges
are living in the "never was TV world" of "Leave It To Beaver" of
the 1950s, and/or are isolated by their elitist education and
social/financial status from the huge majority of citizens.
Current (2008) salary for the Chief Justice is $217,400 per year,
while Associate Justices make $208,100.
http://usgovinfo.about.com/blctjustices.htm
with primo free medical care/perscription benefits and a super
retirement package, all paid for by the taxpayers. [So much for
objective action on socialized medicine and pension reform...]

Now you're throwing in the kitchen sink. g The question is whether they're
adhering to an accurate understanding of the Constitution. Many Courts have
reached 'way out in left field to make claims that they are adhering to
those principles. But now that we get a Court that actually *is* closer to
originalism (although far from perfect), we expect the Court to do something
else.

The "something else" is hard to justify. And I'm not saying this as some
kind of a libertarian originalist. I'm saying it because a Court that makes
decisions based on the popular will, rather than on long-standing
principles, is doing the legislatures' job. And it leaves rights in a
dangerous position, because the popular will often goes against individual
rights. That's the primary justification for hard-nosed originalism. If we
don't like it, we have the means to change it. Often it only takes an act of
Congress to do so, not an amendment. But as long as the courts can be
counted on to do some of the legislatures' jobs, those legislatures can
pander and get away with it. When their pandering becomes something we have
to live with, they usually catch hell for it in the end -- often by being
voted out of office.


Some specific instances are SCOTUS failure/refusal to act on, or
indeed even recognize, the problems of the inaccuracy and/or
fraud of the new computerized voting methods [which not only
determine which politicians are elected, but also the passage of
bond issues and local tax rates]...

That's a state issue, and you know it.

..., and their denial of the reality
of the existence of, and gross abuse by, transnational
corporations, many of which now rival many nominally independent
countries in wealth and influence.

It's Congress's job to do something about it, not the Court's, unless you
can find some constitutional violation that's involved.


We now appear to be headed back into the "two societies"
described by the "National Advisory Commission on Civil
Disorders" [1967] know popularly as the "Kerner Commission,"
except this is now divided into a huge class of [increasingly]
poor, and a tiny class of the affluent.
http://historymatters.gmu.edu/d/6545/
http://en.wikipedia.org/wiki/Kerner_Commission

Given the events that caused the creation of this investigatory
commission [i.e. wide-spread urban riots and extreme civil
disorders], it would appear that every effort should be made to
avoid such a division. Deliberate [or even the passive allowing]
of the creation of social conditions known to promote "class
warfare" is about on a par with the deliberate re-introduction of
bubonic plague, small pox or typhus as a population control
measure.

Tell your Congressman, not the Justices. It isn't their job.


In this case an ounce of prevention is worth not a pound, but a
ton of "cure."

Before I sign off here, let me clear up a couple of things before the
lefties come down my neck again. g What I'm saying is based on an idea
that our government should work as it was designed, or we should make
changes to it. I agree with you about the *results* we would mostly favor,
but the Supreme Court is not the instrument to right these wrongs. It's an
unelected body and, although I generally think highly of their
decision-making, I don't want to see this government upended by defaulting
to the Court on matters that really are questions of what should be in the
Constitution, or are matters that are supposed to be decided by
legislatures, including Congress. If we elect them and can get rid of them,
we have at least a modicum of power to make decisions. With the Court
deciding these things, we have no power at all. We're just deferring to a
group of oligarchs, benign or not.

Thomas Jefferson said we should scrap the Constitution every 19 years and
write a new one. I don't agree with him, although I agree with the idea. The
Constitution itself is something we shouldn't toy with lightly but when it
demands some result we decide we don't like, we should take charge and
change something so it *does* produce a result we believe is right. This is
our government, after all, not the government of some 18th-century wise men
that we have to live with because we don't have the guts to get involved and
do something about it.

And if the Congress is too weak to pass a widely demanded amendment, then
change the way Congress operates. The problem, at its very root, is with us
and with how much initiative and involvement we're willing to engage it. We
can't sit back and just criticize, expecting a system that was wound up in
1791 to run forever without re-winding the springs and adjusting the time.

--
Ed Huntress