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Politics : Politics for Pros- moderated -- Ignore unavailable to you. Want to Upgrade?

To: TimF who wrote (91740)	12/21/2004 11:05:52 AM
From: Ilaine	Read Replies (1) \| Respond to of 793772

the court often has no problem inventing constitutional principles The Anti-federalists did not want to adopt a Constitution without a Bill of Rights, while the Federalists thought a Bill of Rights was not necessary. In Federalist 84, Publius stated, “Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.” This is a pretty clear indication that the drafters of the Constitution thought that things did not need to be spelled out in order to be protected by the Constitution. There is no more essential function of the SCOTUS than judicial review, yet the Constitution makes no mention of judicial review. This is a pretty clear indication that the drafters of the Constitution thought that nobody would be damn fool enough to think that the SCOTUS could function without the power of judicial review of acts of Congress and the President. Otherwise, no checks and balances on Congress or the President. or applying the inventions of other legal theorists, even if the principles and theories have little grounding in the constitution itself. Surely it's not erroneous to use principles of international law of treaties when interpreting international treaties. Nor is it erroneous to use principles of international admiralty and maritime law when interpreting admiralty cases. As you know, the SCOTUS sits in appellate review of many cases over which federal courts have original or concurrent jurisdiction. The SCOTUS does give precedence to international tribunals in such cases, not exactly stare decisis, but as sources of normative law. For example, the British admiralty courts have a long and excellent track record in admiralty cases, in large part because marine insurance is typically issued by British firms. Ship owners all over the world expect courts all over the world to abide by the same principles of law. This is the earliest known version of international commercial law, and it's been that way for many centuries. The SCOTUS uses a completely different methodology when it comes to things like human rights. If the USA is lagging behind other countries in the area of human rights, I think this is worth a mention. We haven't always been the first to adopt new human rights. For example, other countries freed their slaves decades before we did, and treated blacks, Indians, and Chinese humanely decades before we did. It's parochial to think that we can't learn anything from other countries. We can. It's rather a shame that the SCOTUS did not consider that when deciding Dred Scott and Plessy vs. Ferguson, but they did look at English law when deciding Brown vs. Board of Education, which was, as you probably know, a unanimous decision.