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Conservative court

By Dominador Awiten

FOR American civil libertarians, the prevailing concern is the apparently conservative bent of the United States Supreme Court that has come about when President Donald Trump has had the opportune occasions to appoint new justices.

The voting tendency is now a stalemate of 4-4, with either Chief Justice John Roberts or any one of the four conservative justices occasionally siding with the four liberals to come up with the majority or 5-4 decision. The four liberal justices need to concur with each other to promote or defend the libertarian agenda.

For one, the American Civil Liberties Union is anxious about the Right’s being dominant in the public debate as to set aside such standing case law like Roe v. Wade (in which abortion is held as included in a woman’s right to privacy) and Obergefell v. Hodges (in which a State’s ban against same-sex marriage is contrary to the due process and equal protection guarantees).

The liberals’ anxiety recalls to mind the fiercely divisive issue of slavery and the American Civil War that the bitter division led to.

Immediately preceding the hostilities of the civil war was the dreadful Dred Scott decision. With the 7-2 majority ruling written by Chief Justice Roger Taney. it was meant to settle permanently the controversy over slavery, only to arouse much anger in the North and the adamancy to hold on to their slaves among the Southern States, as to firm up each side’s belligerence and hostility.

Dred Scott v. Sanford (1857) ruled that the American Constitution did not consider black persons, whether free or slave, as American citizens. As such, they are not entitled to the rights and privileges that a citizen ordinarily enjoys, such as the right to sue in court.

One dissenting view was that such ruling should be considered only as obiter dictum, because having dismissed the suit filed by the Negro, Dred Scott, for the initial view that the Court acquired no jurisdiction over the suit, it could no longer render a ruling on the merits.

American jurisprudence is relevant to us by reason of history.

Philippine law is mostly a copy, with the American legal system as a template. The Philippine experience is a combination of civil law and common law experience.

This came about owing to our long colonial history — being under Spanish subjugation (with civil law tradition) for many years and American occupation for several decades (during which we imbibed from the latter the mixed civil and common law tutelage).

Such tutelage is evident in our legal system.

For one thing, while the courts do not make the laws, their decisions in actual controversies when they apply the law are held to be part of the Philippine legal system.  This is known as the power of judicial review, which has been considerably expanded under the 1987 Constitution that authorizes the Supreme Court to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of a branch or instrumentality of the Government.

Separately, administrative agencies are part of the Executive Branch in its primary duty to implement or enforce the law.  But, the rules and regulations they make and the administrative decisions they render have a binding, persuasive weight on the courts as well as the Legislature.  This is known as the doctrine of primary administrative jurisdiction.

The foregoing legal principles may be modified or even rescinded with the new conservative stance of the US Supreme Court.

The Court may refrain from exercising its “review power” by sticking to the letter of the law. This is called the “textualist reading of the law,” thus limiting judicial consideration only to the law as it is written.  This is also known as the “plain language rule.”

This abandons the legal maxim of construing the law “by the spirit that gives life and not by the letter that kills.”

The Court, aside from being “textualist” in  attitude, may also ignore the attendant circumstances such as history and traditions.  

This is exemplified by the Court’s ruling that an issue is “non-justiciable” but a “political” one, an issue to be decided by the political or policy-making departments, namely the Executive and the Legislative, or by the electorate (in a plebescite or an election)  in whom resides what is referred to as “legal sovereignty.


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TREND MAKER. Mindanao Gold Star Daily was established in 1989 to set ablaze a new meaning & flame to the local newspaper business. Throughout the years it continued its focus and interest in the rural areas & pioneered the growth of countryside journalism.

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