One of the Best Articles on Explaining Judical Philosophies...

[elwoodblues]

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"But serious fundamentalism would change the country as we know it. It would mean that the federal government could discriminate on the basis of race and sex. It would eliminate the right of privacy. It might well mean that states could establish official churches. It might even raise serious questions about the Federal Communications Commission and the Clean Air Act. It could do a lot more. "

Last time I checked Scalia and Thomas were against state churches

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When have Scalia and Thomas said anything about State Churches (by "state" the author doesn't mean "government," he means California, New York, etc.)?

[etgryphon]

Agreed.

I kind believe in a modified minimalist/fundimentalist aproach. I like the "orgininalism\textualism" approach with reason added to modern interpretation. That is the one thing that I have a problem with the author of the article, he basically bashes the fundimentalist view and only represents it with an extreme view.

For example, as a fundimentalist I don't think that there anything wrong with extenting the "Freedom of Speech" to thinks like faxes, emails, IM and such. Now these thing definately didn't exist in the contruction of the Constitution, but it doesn't make references to personal letter which did exist. So I think any reasonable person can extend that the all forms of communication. That is not at odds with the the First amendment.

The other problem I have with the author is this whole discussion of "Right of Privacy" Most assigned fundimentalist (Scalia\Thomas) are not opposed to this right(mostly on the Federal level) and it is very heavily implied by the 4th, 5th, 9th, and 10th amendments. Most of the discussion is on the "Right to privacy" mainly has to deal with the whole abortion issue. Which is has less textual basis in the Constitution. It is the whole implied right from an implied right and has hence been so diluted as to raise question about its application.

I like the minimalist aproach that takes the stance that case must be overruled if they are in clear violation of the text and reasonable understanding. And making less sweeping statements. The Court can rule that something is "too vague " and thats it...no sweeping judgement to make a new test or interpretation.

This is what I am looking for the court to do.

-Gryph

[natedogg]

In his critique of "fundamentalism" he claims it could lead to

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the overruling of Roe v. Wade, the strengthening of presidential power, the elimination of the right of privacy, the invalidation of affirmative action, the creation of new limitations on congressional power to regulate the economy, and the strengthening of property rights.


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Every single one of these would be a fantastic improvement for us all except for of course the loss of privacy rights.

Oh no! Not the strengthening of property rights! Limitations on congressional power to regulate the economy? Is there anyone who actually thinks congress regulating the economy is a *good* thing? Is this guy a socialist or something?

He follows with

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But serious fundamentalism would change the country as we know it. It would mean that the federal government could discriminate on the basis of race and sex. It would eliminate the right of privacy. It might well mean that states could establish official churches.


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Oh man, that does sound bad. But wait!

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It might even raise serious questions about the Federal Communications Commission and the Clean Air Act. It could do a lot more.

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Oh god no! Not the FCC! If an originalist court would strike down the jurisdiction of most federal agencies like the FCC, I'd willingly trade that for the loss of Roe v. Wade.

However, I think originalists are wrong.

natedogg

[Trainwreck]

In general, I hate the labels given to all this nonsense, I actually prefer to form my own opinion, ON MY OWN.

The fact we have people with jobs who debate this crap and not for the greater good of anyone, probably angers me more than anything.

>TW<

[elwoodblues]

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Cass Sunstein is a well known leftist law professor. Isn't it quaint how he redines terms to win converts. People who support following the constitution are redefined as fundamentalists (why not just call them religious fanatics?).

On the other hand, who could be against "perfection"?

This article is a load of crap.

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Right, because really helpful terms like "activist judges" aren't loaded terms meant to win converts.