Joined: Jan. 2006
Yes, I know what you're saying. So your task, should you choose to accept it, is to construct a document describing and defining a stable government, which will remain useful and relevant for centuries to come, without being too vague to mean anything. And while you're at it, you had better not antagonize very powerful State interests, which often conflict with one another. And of course, your document must be approved by a majority of the eligible voters. And a couple of centuries hence, when conditions and technologies are beyond any possibility of prediction, judges must be able to use your document to guide LEGAL, as opposed to political, decisions. Go for it.
|His or her interpretation trumps the will of the people, if the two differ.|
This statement assumes there IS a will of the people. In reality, there is an enormous constellation of conflicting self-interests, which overlap with other self-interests in some ways but not others. Ordinary citizens have not uncommonly found themselves on both sides of legal cases with essentially similar fact situations, but different vested interests. "Justice" in the minds of the average litigator is indistinguishable from "me winning the case."
|One of the biggest indicators of politics in the SC is the fact that so many decisions are 5 to 4. Clear and obvious the answer is not|
Of course, we realize that if the answer WERE clear and obvious, it wouldn't have got past a plea bargain at the trial court level.
Ironically, at the time it was first enacted, the 2nd Amendment WAS clear and obvious. The States were worried about losing their sovereignty through Federal military adventures. Neither the federal nor state governments could afford to arm a milita; these were gathered from among ordinary citizens and trained to military needs as required. Every eligible citizen had his own arms; these were necessary for survival in most of the country. 'Military arms' wasn't a meaningful notion. So the states made sure that the federales lacked the constitutional authority to disarm their citizens.
So the questions you ask only became meaningful as times changed, military technology far exceeded household requirements, antagonism between federal and state governmental levels became a dead letter (at least at the military level), defense became a national and never a state concern, and the national preference moved toward standing military forces. Gradually, the conditions had changed to the point where the initial concerns were entirely moot.
I'm willing to agree that of necessity Supreme Court decisions are largely political, and that political orientation matters a great deal. But it still serves as a check on other branches of government. If they are WAY out of line, Congress sometimes passes laws to overrule them (which they can do), or even pass entire constitutional amendments to correct misguided Court decisions (the 16th Amendment is just such a case). It's a constant juggling act, and seems to work pretty well most of the time.