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Originally Posted by cat's meow
OK, I cannot disagree but you do have a more 'constructionist view' of what our founding fathers intended and wrote. It is a very good point. But...
And here is where the debate starts. Is a Supreme Court decision the 'law of the land' or a law passed by Congress? both maybe? Who can overturn a law? Take Roe vs. Wade as an example, this is presently considered the 'law of the land' and it was not done through Congress (I am not here to debate validity of the decision, we stay away from that please).
If what you say is absolute ina constructionist way then the law concept of stari decisis would not exist (as per my understanding). It is a widely ageed upon concept when considering our laws, the Consitution, and how things work together between two of the branches of our government (Judicial and Legislative).
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Agreed, and you were very right when saying I am a constructionist. I guess what it comes down to is this. I believe that act of the Supreme Court to legislate as some call it from the bench is in itself unconstitutional and on that ground could be struck down by congress. On the other hand, and this is all my opinion here, I believe that since this hasn't happened it remains legal just as I consider the actions of the President are considered legal till determined otherwise by judges or Congress. When it comes to Roe v Wade I consider that law to be unconstitutional because they overstepped their constitutional rights in this ruling. They didn't even use their self given power to declare a law unconstitutional; instead they used their power to declare the lack of a law/right unconstitutional. In my mind that is more of a dictatorial power. Since that law hasn't been challenged and restricted by a constitutional amendment or by Congress saying that the Supreme Court doesn't have power over that, it remains the law of the land. But here is a thought that pro-choice people over look. Roe v Wade has in its legal ruling outlined how abortion can be limited (a gross overstep of the courts power that in my mind would be worthy of impeachment). According to Roe v Wade almost all third trimester abortions could be banned. That part has been overlooked. In my opinion the Supreme Court should have the right to declare laws unconstitutional as outlined by congress. At the same time I find there declaring the lack of a law whether it to be abortion or homosexual marriage to be outrages and a gross violation of the Constitution.