The Anti-Federalists
Patrick Carver from Southern Appeal makes an excellent point about Kelo and the greater role of judges by quoting Anti-Federalist No. 80, which reads:
Not only will the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors. The same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance. From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favor it; and that they will do it, appears probable.
Like Mr. Carver, I think that such statements were very prophetic.
Stare decisis – it has been decided – government will grow and the citizen will shrink.
Stare Decisis
M. Simon (6b79e8) — 6/24/2005 @ 9:44 pmHere’s the problem with calling a quote like that prophetic: if any of the allegedly prescient Anti-Federalists had been able to predict that this downward spiral would take upwards of 200 friggin’ years to complete, they’d have joined the Federalist cause instead.
Xrlq (158f18) — 6/24/2005 @ 10:15 pm“From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favor it; and that they will do it, appears probable.”
But doesn’t Kelo take power away from courts, and hand it over to local legislatures?
actus (3be069) — 6/24/2005 @ 10:26 pmIn a narrow reading, yes, if you were assuming that there was large-scale judicial intervention before.
However, keep in mind that this, along with the Commerce Clause jurisprudence, represents the opposite side of the coin from the Court’s claim of the power to add constitutional rights that do not exist in the constitution (abortion, buttsex, etc.)… the Court has claimed the power to invalidate and ignore express constitutional provisions.
That’s even worse than inventing new ones.
Angry Clam (f05866) — 6/24/2005 @ 11:01 pmAll true; but I don’t think it has anything to do with the emolument (salary) of the federal judges. The allure of power for power’s sake explains it all by itself.
Dafydd
Dafydd (df2f54) — 6/24/2005 @ 11:10 pmThat was more a throwaway line.
Remember, they were arguing against the Constitution bit by bit, and had to deal with the life tenure/undimished compensations bits.
Angry Clam (f05866) — 6/24/2005 @ 11:22 pmXrlq, apparently it did not take 200 years.
President Jefferson was echoing their arguments, and more, just a few years later.
http://www.barefootsworld.net/tjletters.html#usurpation
ttyler5 (edf81b) — 6/25/2005 @ 12:23 amhomas Jefferson was never a Federalist. For him to be echoing the anti-Federalists was no great shift.
McGehee (acc74b) — 6/25/2005 @ 6:15 pm‘preciate the link!
Patrick Carver (7500ea) — 7/1/2005 @ 7:45 pm