My issue with Rhode Island was that Congress wasn't about to intervene because of everything else going on in 1850. So Taney was like "welp... have at it Rhode Islanders" and that's obviously not a good decision in terms of preventing actual human cost. While he's right that Congress should be able to know it when they see it, I think many instances show that Congress will do what Congress does without regard for consequences. Like allow a civil war instead of legislate. They very well could have ruled that the original government charter of RI was nullified by ratification of the US Constitution, but they left it up to kismet.
So they should have sided with a shadow government that claimed legitimacy? You don't see how that could go badly?
And again, you're calling on judges to step into the role that the legislature and executive branch are supposed to fill. The judge isn't supposed to prevent human cost unless that role is assigned to him by law. He is supposed to apply the law to facts. The legislature is supposed to write laws to prevent human cost, and the executive is supposed to enforce those laws. If they fail, that is a political cost to be incurred on them, which the people can enforce.
Like allow a civil war instead of legislate.
Dred Scott was an act of legislation by judicial fiat, and it was a catalyst for the Civil War. It suggests the opposite point of what you're arguing.
wouldn't have an issue with textualism if we were just an amorphous blob of a country with one overall set of laws. It'd be a hell of a lot easier to decide cases and eliminate activism. And
There's another option. You have a federalist system with clearly defined jurisdictions and with courts that apply the laws enacted in them. That way each court is only working with one set of rules at a time.
, I think it's kind of a reason that liberals are jealous of places like Denmark and wherever else they cite as socialist-capitalist utopias. Paid maternity leave? Sure! Everyone! Not just people from this province or this department or this _____.
Yep, respecting the sovereignty of other people is a *****. Of course, what liberal states could do is simply adopt paid maternity leave in states they control and leave other states that don't adopt it alone. The Right could do the same on gun control. If California or Washington want to ban guns, let them do it. If Texas and Alabama want to ban abortion, let them do it. What's hurting us isn't a lack of judicial activism on these issues. It's an overabundance of busybodyism.
Personally, I'm not a fan of paid maternity leave. However, if Denmark or California want it, let them have it. It's not my business. And yes, liberals tend to like places like Denmark (mostly because they get their way in Denmark quite a bit). However, even Denmark and most countries that adopted the Nordic model in general didn't do it by judicial fiat. They adopted it by their elected parliaments adopting laws and appropriating money. If they adopted those programs the way you suggest (by court's breaking logjams at the state level), Denmark's highest court would force paid maternity leave and then order an invasion of nearby countries that may not have it or have it to the same extent to force it on them.
My issue with being against all of your caselaw is that it creates a need for a court that has to go and figure out what those issues really come down to, and a lot of the time, it comes down to political leaning, popular support (or lack thereof),and what the number of justices out of those 9 think about it. Using the text of Chicago's law for McDonald or Texas's law against abortion means that it's going to come into conflict with not just beliefs but laws from other levels of government. So, the answer divides people, both figuratively in political leaning and potentially physically (if one sochooses to move to a state more fitting of their needs).
It's like 50 toddlers and the Supreme Court is expected to wrangle all of them in time for lunch. And that takes activism sometimes.
For starters, Chicago's gun law didn't run into conflict with any law of relevant jurisdiction. The state of Illinois didn't say Chicago couldn't pass that law. The US Constitution didn't say they couldn't. The same was true with Texas's abortion law. Those were legitimately-enacted laws passed by the elected representatives of those governments, and they had every right to pass them. The written Constitution signed by our founding fathers and adopted by them was completely on their side. If you want to carry a gun, you can leave Chicago. If you want an abortion, you can leave Texas. It is not the responsibity of any of those places to give in to the political desires of people who lost at the ballot box just because they say so, and the judges who forced the issues against the will of the people without the textual authority were acting without legitimacy.
But putting that aside for a moment, think about what you're suggesting. You think that unelected judges who account to nobody should be the ones to decide what an "issue really comes down to" and to "wrangle" the 50 toddlers (meaning the duly elected representatives of the institutions closest to the people and given the broadest authority by the Constitution precisely because they were closest to them) to force some outcome.
I seriously doubt you'd think that way if the forced outcome was against your preferences. What if they went the other way? With all due respect, I think you'd be shitting your pants about the arrangement if they weren't doing what you generally like. What if they said a state couldn't allow abortion? What if they said a state couldn't recognize gay marriage? What if they said a school had to have teacher-led prayer? What if they said every school had to be segregated? Would you be as comfortable with this arrangement? Because if you don't follow the constitutional text, those positions are every bit as viable and defensible as what the courts ultimately did on those issues. The reason why is that if you abandon the text, it all comes down to issue-framing, and I and any lawyer who's worth a damn can frame any issue to "look good" if I want to.
So who's truly in charge? In your world, it's not the elected representatives of the people. It's 5 people that the public never chose and can't remove and aren't bound by the text of the written law. Do you realize how authoritarian that is? Voter ID and having to vote in person is a threat to democracy but this isn't??? This makes an absolute sham of democracy. I'm not usually a hyperpartisan, but this is why Democrats are so full of **** when they pull the "threat to democracy" crap. It's such a friggin' fraud.
Because the only recourse otherwise is just to have all libs move to blue states and all conservatives to move to red states and stick with the texts of whatever they produce.
YES! That is the whole point of having state governments. People in the various states don't all think alike and shouldn't think alike. This is a diverse country of different kinds of people. They didn't think alike in 1789 and they don't now. The big difference is that in 1789, people mostly respected the sovereignty of the other states. If Massachusetts wanted to do X and Virginia wanted to do Y, it was OK unless they were actually violating the text of the Constitution, and that is precisely how the system was designed to work. Their citizens weren't busybodies, and Virginians who wanted X badly enough could move to Massachusetts and vice versa. That's the entire purpose and basis for having states. That's how you avoid polarization the way we have it now. That's how you keep Supreme Court nominations from being partisan political ****-shows. That's how you prevent civil wars from happening. Break that system, and you're inviting conflict and violence.
