Friday, June 13, 2008

Ultra Vires

For those of you who agree with the Supreme Court's usurpation of legislative and executive power, please read Justice Scalia's dissenting opinion. If you prefer the Cliffs Notes version, try NRO'sBench Memos.

I know how important precedent is to leftists. It enables an activist court to chip away at the constitution a little at a time. Precedent be damned. Was Dred Scott a good decision? The Court could have found that since free states existed in the Union at the time of the constitution, Scott was therefore a free man. They did not. That case was the ruling precedent for years. How about Plessy? Another misstep by the Court; a precedent until 1955.

Precedent lovers, take heed. From Justice Scalia's dissent:
What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, "it would be possible for the political branches to govern without legal constraint" in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis.… Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners' claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme. [Emphasis mine]

A reasonably educated person will come to the conclusion that the Court has overstepped its authority in this matter.


Mark Tueting said...

Does that make me unreasonably educated?

A true conservative would celebrate the limitation of the executive to transparently do an end run around the Constitution.

Polymath said...

No, it makes you intellectually dishonest.

A true conservative applauds the dissenting justices' willingness to resist applying law without jurisdiction and to be bound by the constitution.