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[Secret_Agent_Man]

A truly excellent post. In an effort to avoid rehashing old points, and given the length -- I'll just address a few snippets and thus possibly clarify my position.

Originally posted by bilmore
It's all or nothing, I guess - either we accept the overarching principles contained within the document, or we don't.

I'm a big fan of "overarching principles" and "immutable precepts". I see those as mostly expressed in the Preamble and the Bill of Rights. (including, I guess, the 9th Amendment). I also know that the balance of power between the federal and state governments was an overriding concern at the Constitutional Convention, and think that it may well be a good thing that the "federalism" pendulum has swung back a bit.

However, we fought a war about "states rights" 140 years ago, and the "states rights" folks lost. They can't secede from the Union, and (so sorry) the federal government is Supreme. The "states rights" doctrine has been used to protect and preserve all manner of abuses over the past centuries, and I am unwilling to allow certain states or people within certain states to hide behind that doctrine and (for example) violate the other "immutable principles" in our Constitution.

I think it is a very good thing that (for example) activist courts have used the 14th Amendment to extend the requirements of the Bill of Rights to State governments. You seem to suggest that a federalism uber alles approach is the way to go.

Originally posted by bilmore
Were we less willing, over the last one hundred years, to make sweeping policy statements that we call "constitutional" rulings, I think we'd still be enjoying a relevant and working framework.

I think we still are enjoying said framework. However, we were never going to get anything done in a modern, industrial society if we hadn't adopted the expansive reading of the "regulate interstate commerce clause". Are you really with Judge Brown (?) on that one?

Originally posted by bilmore
I think, in a society that actually followed the words, the identity and politics of judges wouldn't matter - they would be enforcing the basic principles, and would not be free to bend them to fit their goals. It's this evolving that has fostered the impotrance of a Scalia, or of a Marshall.

But before the evolving, everyone was Scalia (but perhaps not as smart) and Marshall couldn't sit down to eat in many restaurants. What else should they have done about that, other than court challenges? Constitutional amendments would not have passed, and I'm not willing to say -- "too bad, wait another 50 years."

Originally posted by bilmore
I care not what Adams thought about pollution. What I care about is, what power does, and should, government have over me to regulate my conduct? As long as the government acts in conformity with the overarching principles of due process, and fairness, as set out in the Constitution, how does the Constitution interfere with pollution regulation? I don't think it does - I think you just want to be able to ignore certain protections in order to impose your (completely honorable) desires vis-a-vis clean air and water.

A whole lot of people would have disagreed with you prior to about 1936(?). There was that whole "enumerated powers doctrine" that the old strict constuctionists used to take very seriously.

Originally posted by bilmore
But, while it may be more work to do it all in conformance with the Constitution, that's what our country is founded upon.

I don't like the way you're using "in conformance with the Constitution" as a substitute for "via the Amendment process". A whole lot of very smart and honorable people think that many or most of these changes did come about "in conformance with the Constitution". [The third branch of government, remember? Interprets the laws and passed on constitutionality?]

Also, you persist in ignoring the reality that its not just "more work" do do things strictly via the Constitutional Amendment process. It is all but impossible. Less than 30 amendments in 200+ years? That way is no way, and it leads to destruction.

Originally posted by bilmore
It might be much more convenient to simply allow the feds to run everything and to hold all power - but they ran everything in many european countries from which people were running, and there's a reason they ran.

And they run almost everything in a lot of European countries no one is running from. The cataclysm is not a foregone conclusion. I also doubt that a strong federal system is enough to stop a charismatic dictator in time of crisis. The key is the values and character of the population and whether the Army will support him.

Originally posted by bilmore
Strongly disagree. If anything, it has been the ability of people on both sides to redefine "constitutional" to fit their own needs that has caused this loss of respect and legitimacy. Roe, in my mind, did more to undermine constitutional principles as did anything else since it was written.

Ok. I think I see. You're talking mainly abotu evrerything that's happened since Douglas began seeing penumbras in 1963. I'm talking mainly about stuff that started a lot earlier.

Originally posted by bilmore
"Crystal clear"? Pryor thinks so, too. Is there room in your mind to entertain the idea that he fights the way he does because he respects our need for immutable principles, and finds that one crystal clear, and resists all attempts to water it down?

It is entirely possible that Pryor is an honorable, principled man. That doesn't mean I want him as a federal appellate judge. Also -- you can't really separate a person's strongly-held religious views from a discussion of that person's character.

Originally posted by bilmore
"Roll back"? First of all, the ability to sue a state isn't a social freedom granted in our constitution.

Why do you keep talking about that so much? Its really the smallest part of what I was talking about. I really did not intend this to be a continuation of the Pryor topic.

Originally posted by bilmore
Neither is some "right" to "privacy a constitutional principle.

Why not?

Originally posted by bilmore
It is arrogance to think that you should be able to accomplish your own social engineering in derogation of constitutional principles based on the idea that "it's okay, because we're right".

''in derogation of contitutional principles" - - Again, you make underlying assumptions that rig the game.


S_A_M

P.S. "Hitler"? If another one arises, it sure won't be our Constitution (or strict construction) that stops him.