Accountability for Judicial Activism Act
MGRABER at gvpt.umd.edu
Thu Mar 18 11:47:11 PST 2004
The first thing I note is that this is symbolic legislation, so, in
fact, we are not talking about a real conflict. The real constitutional
issue raised by the "Accountability for Judicial Activism Act" are the
extent to which judicial review enables members of congress to
simultaneously engage in position-taking (I oppose judicial activism)
and ducking crucial issues (oh, darn, my bill did not pass).
The second thing we note is that although there has been extensive
judicial/legislative and judicial/executive conflict in American
history, there has also been extensive legislative/executive conflict
and the regime has been remarable stable. Put differently, the best way
to get a good laugh among persons who study comparative government is to
describe talk about "constitutional crisis" in an American sense.
Certainty is no doubt illusory, but if there is anything that can be
said with some certainly about the American constitutional experience it
is that the stability of the American constitutional system does not
rest on clear lines of authority between the different branches of the
national government, or between the national government and the states.
Mark A. Graber
>>> <RJLipkin at aol.com> 03/18/04 11:30AM >>>
This is just one of the many conflicts that can arise in a
regime of "interpretive equality." For the Court to prevail, it (we)
must embrace judicial supremacy. For Congress to prevail, it (we) must
embrace congressional supremacy. How do those who embrace interpretive
equality resolve this conflict?
Incidentally, I could not access H.R. 3920. Would Rebecca or
someone else kindly provide assistance. Thanks.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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