Section 5 Question
althouse at FACSTAFF.WISC.EDU
Sat Jan 20 10:04:52 PST 2001
on 1/19/01 3:35 PM, Eric J Segall at lawees at PANTHER.GSU.EDU wrote:
> I agree with Ann's points. I was just suggesting what I think the law
> ought to be. I think the Court's judicial supremacy stance to Section 5 is
> unfortunate and even a bit hypocritical for conservatives who often rail
> against judicial activism.
I think judicial activism of this sort is a good thing, though, as I'm
guessing you do. Why not embrace the Boerne line of cases as reinforcing
important concepts of the centrality of the judicial role in defining
constitutional rights? It could be a very valuable commitment in the future.
(It was important in Dickerson.)
One might equally well criticize the liberal side of the Court as
hypocritical for not consistently taking the strong view of the importance
of the court's role. If anyone rails against activism, it would seem to me
to be Justice Souter, (also Justice Breyer). They are the ones most likely
to portray deferring to Congress as an extremely important principle.
Actually, I don't think the conservatives have really been hypocritical
here. They might narrowly interpret some constitutional rights, but aren't
they consistent about the judicial role whenever they see that there are
such rights? I think their railing about activism tends to be with respect
to broad interpretations of clauses they think can't bear the
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