Friday, March 18, 2005
"Look, ma! New, secret Constitutional provisions!"
When I posted on the Roper v. Simmons decision by the Supreme Court, my primary objection to that decision was that, as an example of legal analysis and proper application of precedent, it is a pile of poop. The majority basically took the view that what the Constitution says isn’t controlling. What determines the meaning of the Constitution is what a majority of the Supreme Court justices think it should say.
Well, now BELDAR points out the corollary to this absurd doctrine of Constitutional construction. Harvard law professor Lawrence Tribe arguing, apparently with a straight face, that what isn’t written into the Constitution is just as binding as what is written into it. He identifies these mysterious, unwritten but binding Constitutional provisions as “tacit postulates”.
I happen to be quite thoroughly familiar with the United States Constitution, and I’ve honestly never encountered one of these “tacit postulates.” But I have a sneaking suspicion that there are an unlimited number of them, lurking within the “penumbra” apparently cast by each word and phrase which is actually in the constitution, just waiting for some judge who has no legal grounds to stand on, but knows what the Constitution should say, to suddenly discover them.
No wonder the judicial ranks are swollen with arrogant idiots convinced of their absolute right to declare what the law ought to be and henceforth, shall be. They’ve all graduated from law school, and the lunatics are obviously running that particular asylum.
Well, now BELDAR points out the corollary to this absurd doctrine of Constitutional construction. Harvard law professor Lawrence Tribe arguing, apparently with a straight face, that what isn’t written into the Constitution is just as binding as what is written into it. He identifies these mysterious, unwritten but binding Constitutional provisions as “tacit postulates”.
I happen to be quite thoroughly familiar with the United States Constitution, and I’ve honestly never encountered one of these “tacit postulates.” But I have a sneaking suspicion that there are an unlimited number of them, lurking within the “penumbra” apparently cast by each word and phrase which is actually in the constitution, just waiting for some judge who has no legal grounds to stand on, but knows what the Constitution should say, to suddenly discover them.
No wonder the judicial ranks are swollen with arrogant idiots convinced of their absolute right to declare what the law ought to be and henceforth, shall be. They’ve all graduated from law school, and the lunatics are obviously running that particular asylum.
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