Real “Fundamental Flaws”
Writing by abuhatem on Wednesday, 29 of October , 2008 at 7:15 am
I may cause a stir on this point, but I thought I would put my two cents in after Obama wrote that the constitution was “fundamentally flawed” because it did not include income redistribution. Of course, that is rubbish. But anyway, there are a few things I think we did get wrong in our legal system and our constitution that I would go back and change.
Civil law makes much more sense for conservatives and libertarians to support than common law. If you really think about it, civil law is much less court-based. Common law, in every country it has been tried, has been rife with judicial activism and policymaking from the bench. Jefferson didn’t even like the concept of judicial review itself, what would he think of today’s judicial activism? Conservatives on the Court like Scalia, Thomas, Roberts and Alito still use the court for judicial activism. This is what libertarian constitutional law professor Cass Sunstein writes of frequently, and other advocates of judicial minimalism. Rather than being “income redistribution” as Obama said - the fundamental flaw of the framers in writing the constitution was that they should have more clearly and explicitly defined the role of the Court and adopted a civil law system. It is not very conservative to throw the baby out with the bathwater and change, but in this case I do think it was necessary to gradually adopt a foreign law system. The other major problem with the constitution, is that the 14th Amendment should have been more explicitly written such that the Bill of Rights was incorporated to the states. I know some will chide me saying that this gives more power to the federal government - but it doesn’t. These rights are natural inalienable rights, and for some states to even have the possibility to ignore them is a major problem. Of course the states should also be the fundamental enforcers of such rights. It is a moot point anyway since (1) most of the Bill of Rights has been incorporated, and (2) every state Bill of Rights protects the natural inalienable rights codified in the federal constitution.
Category: American Politics
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