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Bob Levy on Parker and DC's choice
Bob Levy writes in today's The Hill. Excerpts:
"Why, then, is there any question about seeking review? Well, because politics and legal stratagems often play a role. On the political front, the argument will go like this: The last thing the mayor’s Democratic friends want is a gun control case percolating at the Supreme Court, with a decision likely in the heat of the ’08 campaign. Gun control is a losing issue for Democrats and red meat for Republicans."
"Then there’s the legal strategy argument: No doubt some anti-gun groups will urge the mayor not to seek Supreme Court review because D.C. might lose. And if D.C. lost, the repercussions for gun control regulations nationwide could be historic. Because of the tightly balanced cast of justices, and their unknown views on the Second Amendment, there’s a real risk for both sides. Still, the obligation of D.C.’s mayor is to defend the constitutionality of the District’s laws, not to engage in strategic lawyering because of concerns outside of Washington."
"The citizens of D.C. — indeed, all Americans — deserve a foursquare pronouncement from the nation’s highest court on the real meaning of the Second Amendment. The U.S. Supreme Court is, and rightly should be, the final word on that question. Let’s give the court an opportunity to rule, and give the rest of us the benefit of the court’s collective judgment on a debate that concerns millions of Americans."
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In legalese, Levy just said "C'mon Fenty.... make my day".
As I read the Parker opinion from the Court of Appeals, only one of the 6 plaintiffs was awarded relief, the other 5 being (left) dismissed for lack of standing. I believe the Court of Appeals stated that under the Supreme Court's latest decisions on standing the 5 dismissed plaintiffs WOULD have had standing, but they declined to apply this rule unless and until the full Court of Appeals decided to do so.
Isn't this a basis for the dismissed plaintiffs to seek certiorari on their own, regardless of what the City might decide to do?
"The citizens of D.C. — indeed, all Americans — deserve a foursquare pronouncement from the nation’s highest court on the real meaning of the Second Amendment. The U.S. Supreme Court is, and rightly should be, the final word on that question." Sorry pal, the People have the last word. So if the Supremes get it wrong we STILL are going to fix it. Got it?
Levy is wrong. Sorry, but he is. The USSC is the highest court in the land, but not the highest authority. There are two higher. Anyone with any education in American history and civics knows this.
The U.S. Supreme Court has the final word on the Constitution? I take a layman's exception to that contention.
There is a rising trend toward "Popular Constitutionalism" where the People have the last word over the U.S. Supreme Court as opposed to Judicial Supremacy as founded under Marbury v. Madison.
I am still in the learning curve on Popular Constitutionalism.
“THE INTEREST OF THE MAN”: JAMES MADISON, POPULAR
CONSTITUTIONALISM, AND THE THEORY OF DELIBERATIVE
DEMOCRACY
Larry D. Kramer*
NYU School of Law
Legal History Colloquium
March 21, 2007
In 2004, I published a book entitled The People Themselves that recounted the origins and early history of judicial review.1 It had several objectives, some historical, others normative. From a historical perspective, my chief aim was to question and hopefully to dispel certain myths about the Founding. In particular, I wanted to counter the idea that our Constitution was, first and foremost, an instrument of reaction designed to blunt democratic politics by channeling authority to an elite removed as far as possible from popular control. This widely held belief caricatures a more complicated story that is also more democratic in its overtones. Along the way, I hoped to raise some questions about our willingness today to cede control over the Constitution to the judiciary, a development more recent than most people believe and one that derives considerable support from this misreading of our history.
Today, we have for all practical purposes turned the Constitution over to the Supreme Court. We take for granted that final interpretive authority rests with the Justices. Yes, the other branches and departments have a role. Yes, they must interpret the Constitution in deciding what they can and cannot do (which they then indicate by acting or declining to act on constitutional grounds or for constitutional reasons). But when disputes arise, we—and by “we” I mean not just members of the legal profession, but political leaders and the American public as well—assume that the Supreme
Court is responsible for their final resolution. It is the Court that tells us what the Constitution means. This, in a nutshell, is the principle of judicial supremacy.
. . .
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The People Themselves: Popular Constitutionalism and Judicial Review
by Larry D. Kramer
ONLINE: http://www.law.northwestern.edu/colloquium/legalhistory/Larry%20Kramer.pdf
http://www.amazon.com/People-Themselves-Popular-Constitutionalism-Judicial/dp/0195169182
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Book Review by Harvard Law Review
http://www.harvardlawreview.org/issues/118/March05/Alexander_SolumFTX.pdf
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Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?
by MATTHEW D. ADLER
University of Pennsylvania Law School
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=603442
--------------
COURTER-POINT:
In Defense of Judicial Review: The Perils of Popular Constitutionalism
by Erwin Chemerinsk
University of Illinois Law Review
http://home.law.uiuc.edu/lrev/publications/2000s/2004/2004_3/Chemerinsky.pdf
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FOR FURTHER READING:
2005 SYMPOSIUM ON POPULAR CONSTITIONALISM
Chicago-Kent College of Law
http://lawreview.kentlaw.edu/symposia/popular_constitutionalism/home.html