Quote from CaptainObvious:
You're an intelligent person, obviously much more educated that I, so maybe you can explain something to me. In my humble, south side rube opinion, it seems that our entire legal system is run as if it's some sort of classroom exercise. From top to bottom, Supreme Court Justices to some judge in traffic court, lawyers on both sides of any issue...it's all just a game, like some sort of debate team battle that has dire consequences for all, except for those engaged in the debate. When the obviously guilty are allowed to walk free it undermines the entire legal system, does it not? Every time some person walks on technical issue it rips the system a little bit more, until all those in a society lose respect for the law. Every time an O.J. walks, every time a John Wayne Gacy takes 20 years for execution of sentence, every time a well heeled guy buys his freedom, and a poor man does time for the same crime, the people lose a little more respect for the legal system. Consequently you get what we now have, which borders on a free for all. The slippery slope runs both ways and I fear what we've done to protect one aspect of our freedom is now threatening all our freedoms. Is there no room for real world judgments, damn the technicalities? Your thoughts.
I can't really add much to what you wrote, and I fully agree with most of it. I think the Court went very wrong in the 60's under former Chief Justice Earl Warren, a liberal icon for his willingness to invent rights supposedly granted by the Constitution but not stated in the document. Somehow the idea became respectable that judges, particularly Supreme Court Justices, were not there just to decide cases and measure laws against the dictates of the Constitution, but were also authorized to apply their sage wisdom to decide the troubling issues that plagued society but that the congress had not managed to deal with. Step one was to apply the Bill of Rights to the states through something called the incorporation doctrine. You'll notice that the first ten amendments apply by their terms only to congress and the federal government. If a state wanted to say, establish a state religion, they could and several states did just that.
The incorporation doctrine basically stated that the 14th Amendment, because it prohibited the states from denying "due process" to their citizens, actually meant that most of the rights set out in the Bill of Rights also applied to the states. Hence, the Court could rule on matters of state criminal procedure and legislate from the bench and order that obviously guilty defendants be set free because police violated some legal technicality. Step two became the Court taking over the role and state legislators and telling the state how to run their business.
Of course that wasn't enough. There were progressive causes that ignorant legislatures refused to adopt. In Step Three the Court began to invent rights and call them constitutional imperatives. For example, the Court ruled that a state could not impose residency requirements on getting welfare. So if a state wanted to grant generous provisions to its own citizens, but not see them act as a magnet for poor people from other states, it was out of luck. That was ruled an unconstitutional burden on the right to travel. I kid you not.
A lot of people will say the Constitution was old and judges needed to invent ways to make it apply to modern issues. The problem with that is that if it can mean anything five Justices say it means, it loses all meaning. Plus, whenever judges decide issues that properly belong in legislatures, our democracy is eroded. Federal judges have lifetime appointments and don't answer to voters. Legislators and congressmen do.
