Quote:
Originally posted by sultan:
krikies, TL, you must be fierce in the courtroom. i'm glad i never became an attorney! [img]smile.gif[/img]
i'm rusty on my constitution, but doesnt the separation of powers between the 3 branches make this kind of confrontation a standard thing? what i mean is, doesnt the initial assertion that this is a historic clash overstate it a bit?
further to that, doesnt the judicial branch hold all the trump cards (constitutionally speaking)?
i hope this doesnt count as a professional consultation - i'm not sure i could afford you! 
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What makes this clash historic, is that the court rarely gets into matters of National Security. Remember, that if ANY rule of law can resolve a situation prior to consulting the constitution, the Court will apply that law instead of the Constitution. In National Security matters, this is often resolved by deferring to the Commander in Chief.
The judicial branch is stronger now than it was 100 years ago, to be sure, and has exercised a vast power grab, mostly through the notion of Substantive due process. Beginning with Dredd Scott and still alive and kicking in cases like Roe v. Wade, this doctrine was first applied by conservative courts to create "rights" to slave ownership and the freedom (for kids) to contract (for 18 hr. work days), and was later applied by liberal courts to basically make it impossible to legislate morality in the modern era by creating a "right" against any imaginable prejudice (as most recently was demonstrated in the homosexuality case). Substantive due process takes the PROCEDURAL requirement that you cannot be deprived of life, liberty, or property without due process, and warps it into a substantive right prohibiting legislatures from passing a whole slew of laws. There's a ton I could write about this, but go read Robert Bork's book if you're interested. And then talk to me, so I can point out holes in his theory.
On the other hand, some doctrines such as the commerce clause have been applied by the courts to vastly increase legislative power. The commerce clause doctrine takes the provision in the Constitution that Congress can regulate "commerce between the states" and makes it into a mammoth provision allowing near police power at the local level by the federalies. Without commerce clause decisions that were upheld by the court's, the government would have been stopped from limiting a farmer from growing things on his own land (Wickard v. Filburn) and from requiring Hawaii to consider endangered species of fruit flies before allowing construction on the land. In fact, there is a whole "dormant commerce clause" doctrine that works the other way, actually prohibiting states from making laws that aren't directly contradicted by congress in instances where it could discriminate against interstate commerce or in instances where the federalies have inteneded to "occupy the field" of law. Only in recent years (the Lopez case) has the Court shown any willingness to tell Congress, "That's beyond your power and regulates at the local level too much."
So, the gubbermint's grown more robust all around, not just the judiciary. The judiciary may hold the trump card, but it's a very limited trump card with limited applicability (the constitution, that is). The problem isn't the Court growing more powerful vis-a-vis the Congress, but rather the fact that both have grown in power vis-a-vis you and I.
