As the roster fills....

Because, as has been said, democracy and majority rule are not the same thing at all. Nor was simple rule of the majority ever the intent of the framers of the Constitution, etc. That’s why we have bicameral legislatures and presidential vetoes and all sorts of other checks and balances.

At least in cases when politics or other factors have effectively prevented the legislature from making a ruling on an issue.

It’s not just judicial review, BTW, both federal and state legislatures have effectively delegated much of their legal authority to non-elected regulative bureaucracies administrations, simply because it is literally impossible for a legislature to make informed decisions in an increasingly complex society. Put simply, it is now impossible for a legislature (let alone the general public) to make informed decisions on the vast variety of complex issues put before it. The growth of judicial review is merely a symptom of this.

I’m just responding to taliesin here, which is weird, but we’re pretty far off to the right. I’m starting from the top.

SF Pete, thanks for the info. It was indeed the Warren Court I referred to.

Of course I did not, Evan. Slavery was not created by the Dred Scott decision. And you know as well as I do that my point of focus was the use of judicial review to “invent” or interpret the opinion of the judges into the law in cases when unconstitutional laws were not being revoked.

Seriously, "judicial activism" is one of the biggest canards in politics. "Activist judges" are the ones who overturn the laws you like. But judges who overturn laws you don’t like are "defenders of the Constitution."

This is simply not true. If there were a Supreme Court ruling that used a judicially activist rationale to strike down a law I disagree with or invent a law I agree with, I will relish in the benefit of that particular law, but consider the net effect of that process to be negative. It sets a precedent for the other side to use a similar approach, and once both wings have adopted judicial activism, it’s a slippery slope to utterly subjective and politically-motivated Supreme Court judgments.

I’m going to have to ask you to explain further. I’ve not studied anything past a HS USHist class, and so when you start going into advanced vocab/theory considering judicial interpretation, I don’t really know what you’re trying to say.

I wiki’d judicial originalism and got a page with about 7 different philosophies. I think you’d explain it better.

Everson v. Board of Education

Majority opinion written by Hugo Black, former member of the KKK, against the Catholic Church. Interpreted

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

to create “a wall of separation between church and state”. That’s a ruling well in keeping with his prejudices, and not in accord with the Constitution.

Non-Warren Courth: Wickard v. Filburn is one of the better examples. FDR wants to regulate, regulate, regulate. Congress is limited by the interstate commerce clause. So what do his jurists do? They rule in a case with a farmer and his crop that Congress can regulate his production of wheat under the interstate commerce clause, even though he was using it to feed his chickens, for the reason that other people sell wheat across state grounds.

But isn’t the point of the clause to regulate, you know, interstate commerce, not commerce that occurs exclusively within the state? Well yeah, the whole point is that the state should have powers of regulation of economic activity within their own borders, and the feds should keep their heads out, so as to avoid dangerous concentration of power in the central government.

Wickard v. Filburn: illogical ruling? Yes, in the extreme. But it sure helped out the President who appointed the justice (Jackson) who spoke for the court, the same President who put a scare into the court with his proposition to increase its number of members and fill it with his appointees.

IAWTC

You know, a few years ago, the state of California passed a proposition to ban the sale of horsemeat for human consumption.

At the time it passed, a study found no evidence of any horsemeat being sold for human consumption in the state.

There was a lot of horsemeat being sold for dogs to eat – the proposition said nothing about that.

It cost the state millions to have the initiative on the ballot, and probably more to at least nominally enforce.

Regardless, changing the constitution is a pretty big fucking deal, don’t you think? Even if we allow the voters to do it directly, I think it should require a two-thirds majority.