Note that my capitalization of the word "constitution" below is
critical: big C refers to our written Constitution, small c to the
genral principle, or England's "constitutional tradition."

   Date: Tue, 14 May 1996 15:41:06 -0500 (CDT)
   From: "Ranma al'Thor <ranma@falcon.cc.ukans.edu>" <ranma@falcon.cc.ukans.edu>

   On Tue, 14 May 1996, Harold Ancell wrote:

   > The question here is, should they abandon the written Constitution in
   > doing so?  They've abandoned the rule of law and substituted for it
   > the much less satisfying and safe rule of men.  As our Founders
   > envisioned, their independance from and tension with the other
   > branches of government helps, but there is no substitute for the rule
   > of law, a concept going back to at least the 12 tablets of ancient Rome.

   Heh.  I'd argue what the modern judiciary has done is no different than 
   judges have been doing in "English Based legal systems" for hundreds of 
   years.  It's simply part of the common law tradition of law making 
   through the law courts.

You are absolutely correct.  However, one *big* difference between the
US and England is that while our law is grounded in the English common
law, it is supposed to be, and was based on statue:

  1a written law passed by a legislative body, e.g. an Act of Parliament.

(Oxford American Dictionary again :-)

Remember, they don't have a written Constitution as such.  Parliament
can, and has, invalided much of what they used to considered their
constitution.  As far as the common law is concerned, by the time the
Constitution was ratified, the common law was sufficiently developed
(e.g. Blackstone) that it could be codified and enforced through statues.

   The court system desegregating schools, making abortion legal,
   [...] enforcing school busing, etc, isn't acting any differently
   from

Yes, all of the above are unConstitutional, judge made law.  (Note to
others: if you aren't familiar with the decisions themselves, and the
ones they depend on, like Griswald for Roe v. Wade, don't jump into
this discussion and accuse me of being a racist, etc.; John and I are
discussing process, not desired outcome.)

   throwing out the CDA (Please, God, please!  A man can hope :), 

Unless you consider Marbury vs. Madison unConstitutional (and there
are paleoconservatives who do), this is simple judical review
(interestingly, if the Congress wanted to tell the Supremes "hands
off", they could, although they haven't involved that part of the
Consitution in something like 127 years).

   The Dred Scott decision (1857)

As I remember, Dred Scott may not have been bad law per se, although
it certainly made civil war a lot more likely.  You'll have to be more
specific about it.

   The transferral of power over water to private corporations in early 
   nineteenth century massachussetts through reinterpreting the old water laws

I'm not familiar with this case.

Note that I'm refering to the ideal; of course there will be
exceptions (the income tax was held to be Constitutional for a while
in the previous century) back before the transition I perceive during
the New Deal.  My thesis is that the exceptions became the rule then.

   The redefinition of married women's rights over their property in the 
   colonial period
   The redefinition of divorce laws in the same period

That's preConstitutional, maybe even pre-Articles of Confederation.

   The manipulation of treason charges to destroy political opponents in 
   Early Modern England

That's a very good example of why we have a Constitution; notice how
difficult it is to bring treason charges?

   The activities of the Star Chamber in Stuart England

Both of the above aren't American examples; the Bill of Rights has rather
a lot in it to make Star Chambers unConstitutional, although note that
some of the the current anti-immigration laws winding their way
through the Congress would re-introduce secret evidence, etc.  Habeas
corpus is also starting to take a beating; as Paul Craig Roberts has
recently pointed out, we are jettisoning a 1000 years tradition of
civil rights.  And if the Supremes don't stop the Congress, it'll be
another example of rule by men rather than rule by law.

   Or are you referring to something else when you say the law courts have 
   abandoned the rule of law?

Perhaps you don't share my perception of law by statue from 1789? to
around 1936.

					- Harold