12/21/2005

Dispatches from the Culture Wars: Federalist Blog on the Dover Ruling

Conservatives claim foul on Dover ruling, lying through their teeth to look like the victims of "activist judges" wht else is new ? -- law

Ed blogs:I found this post on a Federalist Society blog by someone named P.A. Madison. The arguments, which run the gamut from the false to the downright silly, would make a great [law school] exam answer    I cannot say I am surprised by the Kitzmiller v. Dover Area School District ruling handed down by U.S. District Judge John E. Jones III, but as always, surprised how such cases are so easily seen as a federal issue. The ruling as usual is void of constitutional facts to support federal review and relies on previous unsupported court myths (called precedent). I like the way he says that the ruling doesn't make an argument for federal review "as usual".. of course, that's nonsense. There are two very good reasons why the decision does not attempt to make a case for federal review, and these should be obvious to anyone with even a passing knowledge of the courts, much less a "former research fellow in constitutional studies".First, because the issue wasn't raised in the case.. The judge has to adjudicate a case based on the arguments presented to him, he can't invent his own rationale for why the plaintiffs are wrong and decide the case based upon that.Second, because even if he was of the opinion that the first amendment should not be incorporated against the states he is bound to apply higher court precedent. The application of the establishment clause to the states via the 14th amendment goes back to the Everson case in 1947.. Does Mr. Madison really think that lower court judges, 60 years later, should still need to justify in their rulings that they are doing so? .. the higher court precedent has remained the same on this issue since before most of them were born.

Read more at www.stcynic.com/blog/ar...

0 Comments:

Post a Comment

Links to this post:

Create a Link

<< Home