Recall that Rasmussen Reports conducted a survey of 1,000 likely voters and asked survey respondents the following question:
Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
Recall that the responses revealed a sharp difference between the views of McCain supporters and the views of Obama supporters:
While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.
Since “fairness” and “justice” are almost entirely subjective judgements, this sort of judicial approach will guarantee the final destruction of the U.S. Constitution and the rule of law.
We will then live under the rule of feelings, and liberty will be the first, but not the last, casualty of that change.
Submit to Stumbled Upon!
This will probably serve (yet again) to demonstrate just how completely out of touch I am with “thinking like a lawyer(or a judge)”…
However, I confess that I have always been under the impression that most of what is “written in the Constitution,” along with a substantial portion of “legal precedents,” exists due to intent to establish and promote “fairness” and/or “justice.”
Isn’t that the primary objective behind the Constitution and the court decisions that result in legal precedents? To establish and uphold a set of rules (i.e., laws) that, when followed properly, tend to maintain the same deal for everyone (i.e., “fairness”), as stated in the rules (i.e., “justice”)?
In short: Why the apparent dichotomy in the survey question?
I would submit that, if/when a majority of SC Justices come to believe in this dichotomy, the game is already lost, and neither the Constitution nor the rule of law are usefully operative.
Dead wrong. Most of what is written in the original draft of the Constitution exists with the goal of promoting liberty - not fairness, justice, or any of the other currently fashionable subjecting ephemera.
Understood - the original draft of the Constitution was conceived and promulgated by people who needed as strong a basis as possible for keeping government from interfering in ordinary citizens’ lives as much as possible. After all, they were not that far removed from having been subjected to strong central government - a monarchy - that had little or no respect for their interests.
However, the Constitution to which I’m referring is the document that the original draft eventually came to be - a framework that includes a substantial amount of amendment and detail that brought it much more towards a set of “rules of the road” that were intended to help preserve an “…all men are created equal…”, equality-of-opportunity and equal-justice-under-the-law mind-set. The Constitution as it currently exists, I would contend, is much more than “liberty for all” - and the evolution of the document, it seems to me, has been strongly in the direction of “fairness” (the same result for everyone, regardless of status) and “justice” (equality under the rule of law, rather than the rule of men).
Most of “legal precedent” would seem to be in the same direction. Otherwise, why would it be seen as having widespread applicability by any level of the legal system?
Likewise, if the Supreme Court comes to make decisions based upon “…a sense of fairness and justice…” as opposed to being based on Constitutional writ and/or legal precedent - IOW, based upon the Justices’ own opinions - is that not “the rule of men” (however esteemed and learned those men may be), rather than “the rule of laws”?
How is a dictatorship different in practice, if there are five co-dictators (i.e., a SCOTUS majority) or more who are of like mind, rather than a single dictator?
You’re dancing. Cite the specific parts of the written constitution that refer to “fairness” or “justice.”