I’ve read what Jefferson said and have always marvelled at the connivance of then CJ Marshall (who BTW was secretary of state and had signed Marbury’s appointment but not sent it to him before he moved down the street to the Court.)

G6 I can’t agree in the dichotomy you draw between those who look for “truth” vs. those who look to support their position. Isn’t your suggestion a tautology? If I agree with this position it must be truth while when I disagree with that one the person must be “searching”?

Each of your points are well taken and legitimate. That is why I’ve not taken issue with Lex’s analysis of Justice Kennedy’s opinion, but rather with his assertion that judges are legislating. I just want a justice who is consistent and intellectually honest enough to tell me what he’s doing and why. I’m not confident anyone on the SCOTUS Bench is either of those things.

Best

And poor Marbury never received his appointment, either. Marshall knew that, politically, he could not compel the executive to act, and the legislature was already against the court. But in deciding the case, he did indeed invent (and I stress “invent”) the grounds for future Supreme Court review of “constitutionality.” Clever man. If you haven’t already, read what Jefferson thought of the whole case and his cousin Marshall. Colorful. For better or worse, that has been the role of the Supreme Court ever since.

I might add that in the time of the pirates, we didn’t have international conventions to adhere to (ratified by the Senate, per the Constitution) that defined who a combatant was and how that combatant could/could not be treated. Criminal law was most expedient. In the case of unlawful combatants, not so much. If it is the duty of our elected officials to adapt the Constitution to new circumstances, why is the Executive’s adaptation any less Constitutional than the Supreme Court’s? Is the choice only between calling these muj POWs or criminals? He didn’t choose a new category for trivial reasons, but because they were not by commonly agreed-upon legal standard either POWs or criminals.

I’m with you that quite often conservatives want their own brand of judicial activism, vice a truly strict constructionist reading. I don’t think that’s the case here, though.

Cordially

Agreed. Except does the reformation forgive her past crimes & punishment, of which she was duly convicted by a jury of her peers? I remember that story and I was conflicted about the result myself. But in the end, she still had to pay for her crimes as originally judged by the system in place.

And as you say, the ultimate authority on this is God – so if he decides to forgive her for her crimes as a result of her personal reformation, then sobeit. In the meantime, the jury of peers thing is all we got.

And poor Marbury never received his appointment, either. Marshall knew that, politically, he could not compel the executive to act, and the legislature was already against the court. But in deciding the case against Marbury, he did indeed invent (and I stress “invent”) the grounds for future Supreme Court review of “constitutionality.” Clever man. If you haven’t already, read what Jefferson thought of the whole case and his cousin Marshall. Colorful.