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The Language of Law and the Foundations of American Constitutionalism

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  • Posted December 28, 2010

    more from this reviewer

    Judicial Jihad

    Must a United State have geographic borders?
    Can a State be of ideological boundaries, crafted by a coalition of sovereign and like-minded individuals - able to challenge and take its rightful place as the 51st United State?

    Having read most of Robert Bork's work since the late 80s, I recognized years ago that judicial activism posed a graver threat to the security of this nation than any other form of "jihad."

    McDowell characterizes the senatorial insurgency of the Bork fiasco as the first battle in the "war" to preserve the Constitution.
    He points out that the "intellectual roots" of judicial activism are traced to three innovations:
    One, the "case method of instruction" which replaced "antecedent principles;"
    Two, the hiring of legal Darwiniac heretics like Woodrow Wilson, Louis Brandeis and Elena Kagan to teach law, as opposed to genuine practitioners steeped in original intent, (e.g. Rutherford, Blackstone, Marshall, Story et al.)
    And three, the rise of "law reviews" (e.g. the Harvard Law Review) as the conduit for this judicial heresy.

    From Hobbes, through Locke, to Blackstone and beyond, McDowell analyzes the ramshackle and cantilevered barnacles of wayward precedence, isolating their fasteners for extraction and demolition.

    "Law from precedence should be altogether exploded. What people in their senses would make judges depositaries of the law?" (p. 231.)
    "Such arbitrariness was simply 'repugnant to the principles of free government." (p. 249.)
    "Thus judges are not free to import new meaning into old words, or to transform the Constitution by construction." (p.250.)

    The notion that liberal executives should be allowed to adulterate our courts with activist judges and their latex penumbras, as the apostate, Goober Grahamnesty has said, is nothing less than Constitutional heresy.


    It is interesting to note that the provision for infanticide (i.e. Roe v Wade) had metastasized from a desire to curb yellow journalism and the paparazzi. (p. 389.)

    "Meaning should not be derived from the prejudices or philosophic understanding of the interpreter." (p. 203.)
    "The appellate power of the Supreme Court of the United States, does not extend to this [state] court." (p. 287.)
    "Thus is legislative arbitrariness replaced by judicial arbitrariness," (p. 388.)

    "To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."
    --- Robert Bork, 1990. ---

    "It is no longer assumed to be the province of the judiciary either to quibble away or evade the mandates of the legislature."
    --- Henry Campbell Black, 1896. ---

    "So give me reason, To prove me wrong, To wash this memory clean,"
    --- "New Divide," Linkin Park. ---

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    Posted July 4, 2011

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