"So next time you hear a dingbat speak of "strict constructionist" or "judge-made law" remember you are likely hearing someone who also wants to avoid their responsibilities in some way or another."
Bollucks.
I want a judiciary that just doesn't up and decide something and poof it's law. I want the judiciary checked and balanced, not making it up as it goes along. I want a judiciary that is honest enough to say, 'Well, that's a poser. Not really covered by anything on the books. Why don't you guys go vote and such and then we'll see if what you voted squares with what's already there?' I don't want someone who will look the other way while I dodge on my responsibilities. I overpay my taxes on purpose! and reregister my car 4 months early.
Which activists don't seem to be doing. Oh, nothing in the US Con about something? Fine, we'll cite some foreign judiciary that made it up and go from there.

If you're talking about the excesses of the strict constructionists---typified by Bork as opposed to someone like Thomas or Scalia---fine. But, as I'm sure you found in your studies, a judicial theory you don't like doesn't make it evil. Ex: in the French system you're presumed guilty----is it an evil system and the French unfree? Excesses my good man. Go after the excesses.

And let's not forget the abuses available here. Checks and balances. THe PROPER checks and balances is what Constructionists want. You living document types want whatever is in vogue at the time.(ow, no pinching. THAT hurt.)

Debasement and denial. The very review of law was made up by a logical judge of yours, Marshall. As was freedom to contract as was privacy. You live in the living tree. Na-nah-nana-nah.

And furthermore, here is how ideological purity really works in these matters:<blockquote class="smalltext">Partisan appointments include defeated Tory candidates such as Mark Bettens, a firefighter from Glace Bay, N.S., whose résumé lists one year at Cape Breton University and two runs for the provincial Tories. There are three Quebeckers who worked as Tory political staffers during Brian Mulroney's government and the Conservative Party's long-time Alberta lawyer, Gerald Chipeur. The lists initially included Mr. Harper's best friend, Calgary geologist John Weissenberger, but federal officials said Mr. Weissenberger resigned after he took a government job as Immigration Minister Diane Finley's chief of staff.</blockquote>

And, of course, I am looking forward to jail time for custody mums who deny court ordered access...yeah, right.

WOO! I actually cheered when I read your post. That is to say: I agree completely, Alan.

Jay - I've been involved in two tables-turn cases like that. In one the wife ended up serving my client anti-freeze in the orange juice, killing him and placing her in Her Majesty's care for the rest of her life likely.

That sounds like excesses to me, Al. So does the abusive Kelo decision---fruit of the living tree.

Examples of living tree abuses: Commerce clause used to abridge 2nd amendment(no handguns w/in 300m of schools). The aforementioned Kelo property case. John Yoo's executive theory. THe contradictory element of privacy in the medical field(okay, so privacy means a state gov't can't say what procedures, oh wait, can restrict only some procedures, sometimes, when it isn't a political hot potatoe, but can pass all the rules it wants about licensing and drugs?).

Examples of how the Contstructionist approach works: Patriot act(was debated in the open and as such can still be repealed by the legislative branch when no longer needed), Scalia's opinion on the use of technology to monitor homes for drugs(heat emanations.)---and you'd think a guy like Scalia would just revel in bashing in the head of pot growers.

I'm not saying that there aren't abuses--Judge Bork for instance---but to say that an entire theory is bullshit and used predominately by shirkers? That sounds like debasement and denal to me, mon ami. (Ow. Now stop pinching. Really. THAT hurts. Ow. I'm telling gr.)

Alan, by the Grace of God my ex was not quite clued into the anti-freeze.

My point is that the deadbeats have, rather often, found themselves at the bitter end of a system which does not embrace the father's role save as the "paycheque". You will have to search hard to find a gal jailed for contempt for breaching access terms in a custody order.

Jay - dead beat is dead beat. Arguing the access argument makes only for a bigger deadbeat.

Ry - Constructionism also went a long way to gave you the civil war and Jim Crow, placing the right to property over the right to be recognized as human.

"Ry - Constructionism also went a long way to gave you the civil war and Jim Crow, placing the right to property over the right to be recognized as human."
Well, I disagree with your analysis. What gave us the CW was a bunch of activists who decided to raid a federal armory at Harper's Ferry and arm the slaves. That put people on edge.
The Kansas-Missouri act(The whole deciding of the Mason-Dixon line and all), I think it was called, set things up so that slavery would die a slow, but assured, death. Without war. Constructionist pathway was working.
Let's assume the two pathways that worked to their ideal which would you say was better? The Constructionist long path or the Advocist short and bloody?
We know which was tried and how it actually turned out--and it was not the COnstructionist pathway. I doubt the long path would've worked bloodlessly, but a Civil War with the South enflamed to the level it was? Not likely. They got their compromise and were going to lose slavery in two generations(a fairly heavy cost to be sure). Texas was the last slave state admitted to the Union while at least 5 others were admitted non-slave. They were going to do it democratic and in the People's House, but nope, John Brown and bunch of know-better-than-everybody types had to have their little party, and more Americans died than in any other conflict.
You can't say that that was an untrammled good, Al. Not with a straight face.
This is essentially the strategy of TPM Barnett---work the edges with culture and economics, but then use extreme force when you hit unfaltering resistance(makes for smaller and more managable wars). Every slave state that bordered on a free state was going to have severe economic problems until they changed, and then you had enough to change the Constitution the proper way. Culture power at work too. But nope. Just had to have it tomorrow. If there's one man in American history I'd love to ressurect just so I could hang him it would be Brown. No kidding. The man is not a hero, but a dick who cost hundreds of thousands their lives for something that could've been gotten much cheaper. A man who tried to force the courts to enact his will, because he knew better than the people actually working on the problem in Congress(with progress having been made), and when that failed tried to start armed insuerrection. I define that as a dick.

Don't confuse Constructualism with blatant advocacy in favor of social conservatism. Constructionists hate that type of advocacy too---even when Saint Scalia or Saint Thomas does it. That's what you're seeing with the appointments you reported in todays posts. Constructionism and social conservatism are not synonyms---even if the later try to get away with their nonsense by calling it Construcionalism or Originalism. Scalia isn't perfect. He's about 70-30 COnstruction/social conserv in his rulings, imo. And when he does the latter he get's beat up for rightly.
COnstructionism/Originalism is a theory that has validity and its place.
HEre's my no shit criticism of Living Tree: the advocates of it are all for democracy until they don't get their way. Screw the rules. Screw what the law says(we can make it say what we want anyway). We're making this moral position the law of the land because the people are too stupid to be in favor of it and vote for it.

Remember, Constructionism gave us Dredd Scott, but it also gave us Brown v. Education. Ponder that.

Living Tree has nothing to do with screw the rules. Where does that come from. It means that each generation can apply its own understanding of law without appointing semi-divine status to the mere mortals and the situations of the past. It has nothing to do with moral positions either, just concurrent interpretation and an interpretation that builds over time (like all of <i>stare decisis</i> does).

Why? Because stare decisis is at times tossed aside. Like say, Rowe. Like Kelo. Like LA vs. Chavez(the emminent domain case where the family that owned Chavez Ravine for several generations was given the heave-ho to build Dodger Stadium). It simply evolved and stare decisis was ignored---the interpetation built over time that a very overwhelming need had to be present to before land could be taken via ED instead of 'just good for the community'. When something simply evolves you're getting 'screw the rules' because they ignore stare decisis(excuse the lack of italics).
If C.J. John Roberts was to overturn Rowe he'd be violating stare decisis wouldn't he? He'd be advocating something--a particular social outcome---wou;dn't he? But you could make, and I admit this is lame but only doing it for purposes of argument, a case that protection of life and liberty under the Con REALLY means protection of all life. Even fetal. Poof, evolved law that strikes down abortion. Serious farkin' problems, no?

Not arguing anti-change, Al. BUt change done the right way. Dredd was morally wrong but legally right. They changed the law after that and SCOTUS agreed that the new law that the Congress passed did not violate other segments of the Con. It was a legitimate change. I agreed with the SCOTUS decision to stop the flag burning amendment in the 1990s. But if COngress had the 2/3s necessary? SCOTUS does NOT have the power to stop that. That's outside their purview. The nation changed the Con and they don't have the right to judicial veto to reduce us to the previous one. Judicial review is NOT a judicial veto of everything that the Court dislikes or rules against. It is limited. It is a check that is itself checked. It must be or we're ruled by judges instead of co-equally by the three branches.

Brown makes muster on Constructionalist because the Con, after the chantes to it by COngress, said that Blacks had to have equal access and equal opportunity to education. They found that, after many 'fixes', seperate but equal was not equal. It ruled within the confines of the Con mandated power(is this living up to the law? How does it apply? What applies?). They didn't make law with Brown. They enforced it and interpreted it. They didn't say abracadabra here's a new right to privacy as in Rowe or a new right to take land for 'public good' in Chavez(which begat Kelo).
I like stare decisis, Al. Really. I do. I just don't see how one can be in favour of stare and Living Document since LD makes stuff that goes against stare appear from whole cloth(violate the principle of stare). It creates a situation where if it is linked or cited enough it becomes law. The best propogandists win, not those who are right. Or more specifically, the potential(and infrequently realized) abuse by propogandists.

Maybe you can explain how the two can coexist and actually overlap? I don't see it but maybe if you explained.