View Full Version : Where exactly is this "leftist bias" conservatives complain about in the judiciary?
Goofball
05-24-2005, 23:45
I have heard conservatives complain about the left-leaning, activist judges in the U.S. so often, that I had just assumed that the majority of Supreme Court Justices were appointed by Democrats. But I just went to the Supreme Court website, and found the following info:
W.H. Rehnquist - Appointed by Nixon
J.P. Stevens - Appointed by Ford
S.D. O'Connor - Appointed by Reagan
A. Scalia - Appointed by Reagan
A. Kennedy - Appointed by Reagan
D.H. Souter - Appointed by Bush
C. Thomas - Appointed by Bush
R. Ginsburg - Appointed by Clinton
S. Breyer - Appointed by Clinton
Out of a total of 9 Supreme Court Justices, 7 are Republican appointees. So, where are all of these raving leftist judges you righties are whining about?
Crazed Rabbit
05-25-2005, 00:01
Just because they were appointed by a republican doesn't mean they will always have a conservative view. Just look at the recent minor death penalty case where they voted, 5-4 that the death penalty for minors is unconstitutional. A little over a decade ago, the court had ruled on that same issue and decided that executing minors was not unconstitutional. In the recent decision, A. Kennedy apperently changed his mind-or, according to him, the meaning of the constitution changed in the 10 years in between! Of course, they didn't cite the constitution so much as foreign laws! (because, of course, the constitution doesn't ban minor death penalties.)
The problem we conservatives have is with activist judges: those who rule based not on what the constitution says, but what they think is right. Those who, for example, decide that a woman has a 'right' to abortion, due to the 'right' of privacy, which is not in the constitution. Or that there's a 'seperation of church and state' in the constitution. Or that flag burning is protected under 'free expression'. Heck, they'd probably overturn laws against supporting the enemy during wars if the issue ever came up. Or that, since criminals have the right to an attorney, the state must provide one. Or judges who say, "You do what you think is right, and wait for the law to catch up."
In essence, we hate 5 people deciding what is right for our country and totally ignoring what they are supposed to be guided by-the constitution.
Crazed Rabbit
Proletariat
05-25-2005, 00:06
Wonderfully put. You can't politicize the Judiciary. It needs to be a strict interpretation of the Constitution.
If you let the Constitution be reinterpreted by every idiotic movement that comes down the pipe, you lose a major part of what is truly unique in US democracy.
PanzerJaeger
05-25-2005, 00:10
The supreme court is not the only judiciary in the country Goofball.
Adrian II
05-25-2005, 00:20
A little over a decade ago, the court had ruled on that same issue and decided that executing minors was not unconstitutional. In the recent decision, A. Kennedy apperently changed his mind-or, according to him, the meaning of the constitution changed in the 10 years in between! Of course, they didn't cite the constitution so much as foreign laws! (because, of course, the constitution doesn't ban minor death penalties.)I may be a foreigner, but I can read Supreme Court decisions and Roper v. Simmons (http://a257.g.akamaitech.net/7/257/2422/01mar20051300/www.supremecourtus.gov/opinions/04pdf/03-633.pdf) is clearly based on Constitutional grounds, citing a change of heart in the majority of State Supreme Courts over the past ten years regarding execution of minors and mentally retarded persons:
(a) The Eighth Amendment’s prohibition against “cruel and unusual punishments” must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework this Court has established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be “cruel and unusual.”
[...]
Three Terms ago in Atkins, the Court held that standards of decency had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and unusual punishment. The Atkins Court noted that objective indicia of society’s standards, as expressed in pertinent legislative enactments and state practice, demonstrated that such executions had become so truly unusual that it was fair to say that a national consensus has developed against them.
Etcetera...Oh, and go Anthony Kennedy! ~D
due to the 'right' of privacy, which is not in the constitution
The words 'right to privacy' are not in the constitution because in the late 1700's the word 'privacy' was a euphimism for going to the latrine. I don't think our founders saw an explicit right to take a dump as needed.
Also have you heard of this thing called the 9th amendment? It states that
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. meaning that rights not listed we still have because one argument against the Constitution was a lack of a Bill of Rights, and one of the problems with the Bill of Rights was the fear that we have too many right to list, so listing rights would make people believe that those not listed we did not have, therefore the 9th amendment.
And laws limiting free speech can be passed only if they protect national intrest (no spilling government secrets say), burning a flag does not harm those intrests, there are no laws that force you to love America.
May I ask why you use quotes around free expression like it was some loney idea?
Tribesman
05-25-2005, 00:45
So, where are all of these raving leftist judges you righties are whining about?
You miss the point Goof , if they are not rabid baying for blood and frothing at the mouth right wing exreemists then they must be leftist liberal girly men . ~D
Crazed Rabbit
05-25-2005, 01:07
May I ask why you use quotes around free expression like it was some loney idea?
Because it is used to defend people who burn the symbol of our country. Now, that seems awfully close to treason to me...
To implement this framework this Court has established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society”
This is exactly what I'm talking about. They decide to do whatever the heck they want, and pretend that it's all hunky-dory since 'the constitution is an evolving document' and other such drivel they make up. The courts are supposed to decide based on the laws, not make laws. And just where in the constitution might one find anything about the constitution's meaning changig over time? It's a bunch of BS the activist judges made up to give the illusion of lawfullness to their dictatorship.
Three Terms ago in Atkins, the Court held that standards of decency had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and unusual punishment. The Atkins Court noted that objective indicia of society’s standards, as expressed in pertinent legislative enactments and state practice, demonstrated that such executions had become so truly unusual that it was fair to say that a national consensus has developed against them.
Etcetera...
As crazy as it seems, the point of judges in this coutry is to apply the law, in the case of the S.C., to apply the constitution. It is NOT to say that the constitution chages over time, and then decide whatever they think is best.
If state legislatures had been banning executions of minors, that is no reason for the S.C. to start legislating. It is the job of the legislatures to-surprise!-legislate, not for the SC to dictate whatever it thinks. And a 'ational consensus' is totally unimportant, what is important is the constitution, not what the SC declares the people feel.
meaning that rights not listed we still have because one argument against the Constitution was a lack of a Bill of Rights, and one of the problems with the Bill of Rights was the fear that we have too many right to list, so listing rights would make people believe that those not listed we did not have, therefore the 9th amendment.
Yes, but what 'right' is there in the constitution for having an abortion? The SC just decided that woman should be able to have abortions on demand, and so made up some BS about a 'right' to a abortion. How is a ban on abortions unconstitutional?
Oh, and go Anthony Kennedy!
Yes, we had better not execute criminals if they are under a certain age, no matter how heinious their crime is. But if an innocent child is drastically ill...
Crazed Rabbit
Adrian II
05-25-2005, 01:19
They decide to do whatever the heck they want, and pretend that it's all hunky-dory since 'the constitution is an evolving document' and other such drivel they make up.Of course it is, the use and meaning of every legal instrument or founding text change over time. I tend of think of the Founding Fathers as men who indeed believed in social progress and a 'maturing' society, and who introduced a clause against cruel and unusual punishment because they did not want their new country to copy the barbarous punishments of early modern Europe, but to be a shining beacon for humanity. You just sound like an American Taliban with your 'litteralist' interpretation of the document.
PanzerJaeger
05-25-2005, 01:20
Crazed Rabbit stated things quite clearly.
The Supreme Court's job is not to make law but to uphold it.
Of course it is, the use and meaning of every legal instrument or founding text change over time. I tend of think of the Founding Fathers as men who indeed believed in social progress and a 'maturing' society, and who introduced a clause against cruel and unusual punishment because they did not want their new country to copy the barbarous punishments of early modern Europe, but to be a shining beacon for humanity. You just sound like an American Taliban with your 'litteralist' interpretation of the document.
What I think has happened to the American Judicial System is that instead of just stating that the law is un-constitutional and returning it to the Legislative Branch to be re-written - which the Supreme Court has done in the past and will likely do again - there is a perception that some laws are not being done in this process and the Supreme Court - and more so the appeallant courts - are making law through judicial means - verus allowing the legislative branch to make law.
Now is this perception accurate - at one time I would of thought so - however now I am not so sure. I do believe the courts on occassion have violated the United States Constitution by making law - verus deciding on Constitutionality of the law - but I am coming to believe its not as ballant nor as wide spread as I initially thought.
Of course it is, the use and meaning of every legal instrument or founding text change over time. I tend of think of the Founding Fathers as men who indeed believed in social progress and a 'maturing' society, and who introduced a clause against cruel and unusual punishment because they did not want their new country to copy the barbarous punishments of early modern Europe, but to be a shining beacon for humanity. You just sound like an American Taliban with your 'litteralist' interpretation of the document.
Taliban... nice touch.
If the Consitution is intended to be a "living" document that's open to subjective reinterpretation, why do we even need a mechanism to change it? It's unneeded if it can be interpretted on "evolving standards".
Yes, I'm aware of the 9th Amendment- it makes perfect sense. The authors knew they couldnt cover everything in the Bill of Rights and they didn't want later governments to try to say the people have no freedoms that arent listed in the Constitution. As has been said, the Bill of Rights does NOT grant rights to citizens- it limits the government's imposition on the citizens. This is a far cry from the Supreme Court creating consitutional rights that don't exist in the Constitution.
Why should the determination of evolving moral standards be left to the discretion of a small oligarchy? We have a representative legislature that is far better equipped to represent the views of the people and has the Consitutional authority to enact laws and make changes to the founding document.
If judges actual did their jobs and interpretted laws- without injecting their own views, their political viewpoints would be a non-issue and the only thing for the Senate to decide would be whether or not the nominee was qualified. I believe this is the way it used to be- and it is the way I'd like to see it now.
Kanamori
05-25-2005, 02:37
Oh, dear :dizzy2:
Papewaio
05-25-2005, 04:15
The Consitution is subjective.
If it was set in stone then there would never have been the need to have a panel of Judges vote on particular subjects or if they voted on a 'non-changing' document it would have to be 100% for or against and then the decision becomes unchangeable just like a Papal decree.
Kanamori
05-25-2005, 04:25
"The Consitution is subjective.
If it was set in stone then there would never have been the need to have a panel of Judges vote on particular subjects or if they voted on a 'non-changing' document it would have to be 100% for or against and then the decision becomes unchangeable just like a Papal decree."
That's the problem; some do not like judges "declaring" how the constitution is changing, in some cases. They do not trust them, and can you really blame them? But, then again, that's why they don't have much power to enforce anything.
The irony I see is when people cite the constitution was meant to be, almost always throwing in something about the founding fathers, and then pointing to how the Courts aren't directly in check by the people, losing sight of the fact that is what the founding fathers intended.
The Consitution is subjective.
If it was set in stone then there would never have been the need to have a panel of Judges vote on particular subjects or if they voted on a 'non-changing' document it would have to be 100% for or against and then the decision becomes unchangeable just like a Papal decree.
Sorry, I don't buy that argument. That's like saying that if a criminal code is written clearly there is no need for trials for the accused. Clearly there is a need for courts- but their decisions should still be based on the letter of the law and letter of the Constitution not their personal morals or what they percieve to be a right.
Papewaio
05-25-2005, 04:49
Sorry, I don't buy that argument. That's like saying that if a criminal code is written clearly there is no need for trials for the accused. Clearly there is a need for courts- but their decisions should still be based on the letter of the law and letter of the Constitution not their personal morals or what they percieve to be a right.
The letter of the law is a set of rules.
The spirit of the law is justice.
Being flexible is never a bad thing... mmmmmmm gymnasts...
Gawain of Orkeny
05-25-2005, 05:40
If it was set in stone then there would never have been the need to have a panel of Judges vote on particular subjects or if they voted on a 'non-changing' document it would have to be 100% for or against and then the decision becomes unchangeable just like a Papal decree.
Im afraid they werent given this power but took it upon themselves. Once more they should at least have a two thirds majority just like the congress to change anything. If its 5 to 4 then the original ruling of the prior court should stand and the case thrown out of the supreme court. Sort of like a hung jury. You should need 6 voted to overturn something. This would put an end to judicial tyranny. You would never get 6 of them to agree on anything ~D
bmolsson
05-25-2005, 05:59
Isn't the American constitution a bit outdated these days ??
Adrian II
05-25-2005, 09:29
If the Consitution is intended to be a "living" document that's open to subjective reinterpretation, why do we even need a mechanism to change it? It's unneeded if it can be interpretted on "evolving standards".It would be a living document even if it were not intended as such. That doesn't mean every interpretation goes. It's the spirit of the text that counts, and as Roper v. Simmons and many other cases show, that spirit must be deduced from historical circumstance and its application must conform to evolving case law, legislative decisions, treaties, medical ethics, international developments and other evidence of changing views and circumstances in society. Hence the Court's view that the notion of cruelty has undergone changes.
And if you don't like so-called 'judicial creep', you should ask yourself why the Constitution established a truly independent judiciary. It's all in the Federalist Papers. If you don't agree with those reasons, you shouldn't complain about justices who accurately observe the Constitution, but campaign for Constitutional change.
And if you don't like so-called 'judicial creep', you should ask yourself why the Constitution established a truly independent judiciary. My guess would be so that it could attempt to stay above the political fray and do its job without being influenced by which ever way the political wind is blowing.
It's all in the Federalist Papers. If you don't agree with those reasons, you shouldn't complain about justices who accurately observe the Constitution, but campaign for Constitutional change.A judge the follows the letter of the Consitution while saying he would like to see certain parts changed? If that's what you meant- then I don't have a problem with it in principle. In fact, a judge who ruled on the law even if it was going against his personal beliefs would be an ideal judge in my mind.
Adrian II
05-25-2005, 12:33
My guess would be so that it could attempt to stay above the political fray and do its job without being influenced by which ever way the political wind is blowing.I can only agree, even though it's not my country or my Constitution we're talking about. But it's more than a guess in my case.
In a sense I've been here, done this before. I opened a thread some time ago about the Second Amendment. I don't agree with the notion that people should have the right to own guns for self-defense, but in that thread we discussed historical circumstance, I read up on the issues involved. And I concluded that the amendment was introduced (by Madison) and adopted in order to ensure that every American could own a gun as a means to protect popular sovereignty against whatever might threaten it, be it foreign invasion, internal uprising or a power-grab by its own government. So to those who want to ban individual ownership of guns I would say: don't overstretch the original intention and context of the Second Amendment, but go and change or scrap it through the procedure foreseen by the Constitution: legislative action.
The same principle applies to this ruling about execution of minors. I think the Supreme Court has made a decision in line with the spirit of the founders. The underlying notion of the Eight Amendment was that civilisation progresses, or should progress, and that the U.S. should be in the forefront of that movement if that is possible, feasible, and in accordance with the established will of the people laid down in legislative decisions, case law, treaties, etcetera.
Anyway, this is what a 'living' Constitution tends to do: stay alive. Deal with new problems and situations that the authors couldn't foresee, reinterpret itself precisely in order to remain true to its original intentions. Heck, the Supreme Court's power of 'judicial review' isn't even mentioned in the Constitution. But it was standing practice in State courts, so its extrapolation onto the Supreme Court was considered self-evident around 1800. It wasn't until 1803 that Chief Justice John Marshall confirmed his Court's right to overturn unconstitutional legislation: 'It is emphatically the province of the judicial department to say what the law is.' That's what living Constitutions tend to do as well: they grow on a people.
And it isn't as if the Supreme Court has the power to enforce its own private legislation. 'The supposed danger of judiciary encroachments on the legislative authority (..) is in reality a phantom' (Hamilton, FP 81). Oh, and Madison knew his American politics better than anyone else in his time. That's why he insisted that the Supreme Court's jurisdiction would be lifted outside the sphere of public bargaining, partisan infighting and whatever political wind is blowing on a given day. He knew, or foresaw, that such cut-throat infighting would be endemic, inevitable, as well as necessary if the dynamic, forever renascent, forever renewing nation of his dreams to remain alive.
Shoot me for arrogance, but I can't help being amazed sometimes that Americans have such a hard time understanding how damn smart their Founding Fathers actually were.
P.S. Yeah, I'm a Madison fan... ~:cool:
Steppe Merc
05-25-2005, 13:10
Question... If the Constitution has to be interpreted litteraly, as it was written, isn't the outlawingi of slavery illegal? Since it says clearly in the Constitution slavery is ok...
Gawain of Orkeny
05-25-2005, 13:21
Question... If the Constitution has to be interpreted litteraly, as it was written, isn't the outlawingi of slavery illegal? Since it says clearly in the Constitution slavery is ok...
Excuse me. The constitution was amended so as to make slavery illegal. Thats the way your supposed to change it. Not read something into it by a bunch of ex lawyers that isnt there. Ill remind you that the supreme court upheld slavery. Their just as failable as anyone else and as I said they dont come close to a real majority on any of these issues in the first place. Also theres the fact that this power isnt granted them by the constitution .
And it isn't as if the Supreme Court has the power to enforce its own private legislation. This may be true in reality, but in practice anyone who proposed ignoring a Supreme Court decision would be burned at the stake politically, and probably even thrown in prison literally for it. Courts are now the final arbiters of most everything- they even have the baffling power to overturn a state's own Constitution.
Proletariat
05-26-2005, 00:09
Shoot me for arrogance, but I can't help being amazed sometimes that Americans have such a hard time understanding how damn smart their Founding Fathers actually were.
Who're these Americans? Sure, I don't see teenagers with 'T. Jeff Rewlz!' shirts at the mall around here, but the only people who aren't reverential of them are the Micheal Moore idiots who take them for nothing more than a bunch of racist landowners.
Washington's Crossing (http://www.amazon.com/exec/obidos/ASIN/0195170342/qid=1117062456/sr=2-6/ref=pd_bbs_b_2_6/104-0098735-2229543) was a bestseller here for ages.
Adrian II
05-26-2005, 00:15
Courts are now the final arbiters of most everything- they even have the baffling power to overturn a state's own Constitution.So how come? Those nine Justices don't possess supernatural forces that I am aware of. What sort of power makes them the final arbiters of most everything?
Adrian II
05-26-2005, 00:22
Who're these Americans?Those who think the Constitution is set in stone. It printed on paper, you know... ~:cool:
Seriously, my above posts on the subject should be clear enough. I'm willing to discuss James Madison any time, not Michael Moore, Rush Limbaugh and their respective T-shirts.
Proletariat
05-26-2005, 00:25
Those who think the Constitution is set in stone. It printed on paper, you know... ~:cool:
Ah, misread you. Thought you were saying the FF are just taken for granted here. (Not completely untrue)
Seriously, my above posts on the subject should be clear enough. I'm willing to discuss James Madison any time, not Michael Moore, Rush Limbaugh and their respective T-shirts.
Well, I'm more of a TJ gal myself, but I'll jump in next time Madison's discussed.
Kanamori
05-26-2005, 01:13
"Ill remind you that the supreme court upheld slavery."
That was back in the day when people never made any decision at all based on morals, in the courts. It wasn't, until the Civil War ended, to own slaves was made illegal, and it was a right that many thought should be protected. Dred Scott is the result of a court taking in the very literal meaning of the constitution, so you cannot use that in any respect for showing how an oligarchy of judges are at fault for the slavery rulings.
"This may be true in reality, but in practice anyone who proposed ignoring a Supreme Court decision would be burned at the stake politically, and probably even thrown in prison literally for it."
If there were ever to be a decision that was clearly unreasonable, the justices would be removed so quickly taht you would question if they were just a part of your imagination all along.
"Courts are now the final arbiters of most everything"
Most of what has been in the topic, up until now, was quite reasonable. Contrary to some, a few judges are more “activist” than they should be, but this is just a bit more than an overstatement. The Supreme Court has almost no say at all in most things.
"they even have the baffling power to overturn a state's own Constitution."
They cannot overturn an established constitution. The only way they can overturn a constitution is if a new state made, in which its drafted state constitution is inherently against the federal constitution. But, I think you meant proposed changes to a state constitution, in which case, under the 14th amendment, the Supreme Court has the duty to overturn an unconstitutional amendment to a state constitution. How just would it be if a state made an amendment saying that certain people -- whomever they wished to silence -- don't have a right to speak at all? I am glad that they can overturn unconstitutional state amendments.
"The constitution was amended so as to make slavery illegal. Thats the way your supposed to change it."
Unfortunately, the US judicial-legislative system isn't perfect, and it needs to, or should, be changed. There is a gap in what the legislative branch can do effectively and what ought to be done to keep order among the states, because the amending process is difficult. And, I like it being difficult; it assures that the vast majority has to agree with something, in order for it to become the “supreme law of the land”. (Something like 10,000 amendments have been proposed, and we only have 26.) While the politics hinder some decisive change, the Supreme Court can take a moderate stand, in order to keep some semblance of order, in between the time it takes to have a really definite stand on an issue by the Congress. While the Judicial Branch does not "legislate", it makes federal judgments in the absence of law, maintaining order, by setting boundaries. It would take unprecedented cooperation of the states to fill the holes that the courts do. This hole was quite unforeseen by the founding fathers. E.g., much of Supreme Court rulings are made in regard to economics and trading. The Senate and House are too slow to be effective, in some cases. This is where the problem is. While the Supreme Court’s intervention in some areas is quite necessary and proper, it is starting to verge on being a separate entity, which guides where the law can go, when it should not be doing so, i.e. making the federal law more specific than it ought to be. A government tends to be more efficient if the laws get more and more specific at the local levels – but how specific does the federal law need to be to keep all the lesser laws on the same plane? Anyways, there is difficulty in limiting what the courts should do, in order to carry out their needed role, because the ends are so dependant on the means, in the case of the courts. If they continue creeping out of where their domain ought to be, though, some laws will need to be made to keep them in-line…its actually kind of a catch 22, the law to limit their powers would have to be an amendment, which are difficult to pass…they have taken their role in social change too seriously, since the civil rights decisions…someone shoot me, I’m starting to sound like Scalia. (I hope I wasn’t hopelessly vague:S)
Kanamori
05-26-2005, 01:22
"I'm willing to discuss James Madison any time"
"I'm more of a TJ gal myself"
They were almost one in the same. Their subtle differences in views have had far reaching effects or implications, though.
I do not think any one founding father captures the spirit of our constitution (Madision comes close, as he was the person drafting most of it, but he was a supporter of the Virginia Plan, which may have ended up being better anyways), but it is captured in the compromises that all of them made in how they would share power amongst the states, and how they all wished to protect each other's rights, in interest of their own really, with a written constitution.
The problem we conservatives have is with activist judges: those who rule based not on what the constitution says, but what they think is right. Those who, for example, decide that a woman has a 'right' to abortion, due to the 'right' of privacy, which is not in the constitution. Or that there's a 'seperation of church and state' in the constitution. Or that flag burning is protected under 'free expression'.
This is specious logic that makes several assumptions that are not true, and serves to mask the so-called conservative activism rampant today.
The Constitution establishes limits on government authority, that was the original purpose. Only recently have activists attempting to subvert that purpose by re-writing the Constitution to limit the rights of the people.
There real issue is that judges do what thye think is right, based on existing laws and the principles of freedom and equality put forth in the Constitution to thwart activists who would impose their specific brand of idealogy on all of us. Since the so-called conservatives can't elucidate a rational response, they intend to remake the judiciary in their image, installing activist judges who will rule in the 'proper' way. In order to effect this change they use terms like activist and liberal, when in fact it is the right wing who are actively trying to change the basis of our country.
JimBob was right on when he quoted the 9th Amendment. There is no explicit prohibition against abortion, or flag-burning, in the Constitution, but activists are unhappy that these things occur, so they want to create a Constitutional prohibition against them. To do this they eschew the idea that the Constitution is a living document but they undermine their arguments by using political power to change the meaning.
All this fuss over values when there are serious issues to deal with. Horrendous personal debt, government spending out of control, totally out of whack trade balance, crumbling infrastructure and a loss of leadership in education and health care, all these are put aside so we can fix the stupefying problem of flag-burners.
Flags are burned so rarely it is a truly inconsequential issue. America truly stands for freedom, and that includes the freedom to hate this country and its institutions. Since flag-burning is a political statement, it has rightfully been protected assuch. But now there are activists who want to use the Constitution to restrict the right to free speech (almost always held to include political statements of an actual nature, provided those acts do not violate other laws).
If you believe in freedom of speech then you either allow speech and acts that you find distateful, even outrageous, or you don't. If you don't then you really support freedom of speech as long as it is consistent with your values, which isn't freedom at all. That's an illusion.
The government has a rightful place in defending the country from foreign attack, maintaining infrastructure, protecting the people from crime and unhealthy environmental conditions, but it shouldn't ever interject itself into the most private affairs of people, decisions made properly by a woman and her doctor.
Understand me, I find abortion abhorrent, and anyone who hates this country enough to burn the flag should move elsewhere, IMHO. But if I expect to be free, truly free, then I have to believe in a society where others, those who feel differently, can be free also.
This country was founded in large part by people escaping State-sponsored religion, and the Constitution reflects that by prohibiting the establishment of religion. Yet so-called conservatives actively support judges who want to impose Christian morality over our secular laws. Look at judge Moore and his activities-activitism supported by the same folks who scream bloody murder when a 'liberal' judge rules against them.
The real activists are the ones clamoring for change, and right now its the religious right and neocons who are most deserving of the labels 'activist' and 'radical'
I'm weary of the idea that if I don't support Bush blindly I am unpatriotic, or if I believe it is up to the woman whether she carries a fetus to birth that I am a murderer, or that if I think its good to keep religion in the church and freedom in the law that I am undermining society.
The idea that the self-proclaimed right has the moral high ground is unfounded. Reasonable men can disagree, or at least should be able to disagree. But the principles that I believe in (freedom, responsibility, limited government, a safe and healthy world) are as 'right' as any espoused by those who would impose their will on the US.
ichi :bow:
ps have fun boys with the ever-predictable counter-assault
Gawain of Orkeny
05-26-2005, 02:06
The Constitution establishes limits on government authority, that was the original purpose. Only recently have activists attempting to subvert that purpose by re-writing the Constitution to limit the rights of the people.
No theve been re written it to bestow rights that arent there.
Since the so-called conservatives can't elucidate a rational response,
Talk about an ad homenum attack. Whats your basis for this statement?
they intend to remake the judiciary in their image, installing activist judges who will rule in the 'proper' way.
No they intend to appoint judges who will decide matters based on what the constitution says. Not on what they want it to say.
when in fact it is the right wing who are actively trying to change the basis of our country.
Yeah thats why their called conservatives LOL.
Several posts here seem confused. Judicial Activism (JA) is old. It goes back at least to 1803 with the establishment of Judicial Review. What qualifies as JA is basically legislation from the bench. This means determining what the law is and ordering compliance.# It is therefore a circumvention of legislative authority. Many agree this extra-legislative apparatus is sometimes necessary. A simple example would be the 1954 Brown v. Board of Education ruling that set the legal stage for civil rights legislation. Another example is 1973 Roe v. Wade.
Those who disagree with JA do so because it is anti-majoritarian and therefore undemocratic. Governing legitimacy is based upon popular will. Absent that will one has only despotism.
# That other government branches feel obliged to listen is itself a curiosity. A good example would be the recent Mass. Supreme Court ruling on Gay marriage.
ichi
There real issue is that judges do what thye think is right, based on existing laws and the principles of freedom and equality put forth in the Constitution to thwart activists who would impose their specific brand of idealogy on all of us. Since the so-called conservatives can't elucidate a rational response, they intend to remake the judiciary in their image, installing activist judges who will rule in the 'proper' way. In order to effect this change they use terms like activist and liberal, when in fact it is the right wing who are actively trying to change the basis of our country.
Whats your basis for this statement?
You provided the basis
No theve been re written it to bestow rights that arent there.
This seems to be the best argument that I've seen, but JimBob already completely undermined it, but his post went ignored
JimBob
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Besides I already addressed this
ichi
The Constitution establishes limits on government authority, that was the original purpose. Only recently have activists attempting to subvert that purpose by re-writing the Constitution to limit the rights of the people.
Somehow 'conservative' has come to mean a person who supports activism to radically change the Constitution from a document that limits government to a government tool to enforce their moral views.
Look at the amendments to the Constitution and tell me whne they started to impose restrictions rather than bestow rights
Amemdments to the Constitution
Amendment I - Freedom of Religion, Press, Expression. Ratified 12/15/1791. Note
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment II - Right to bear arms. Ratified 12/15/1791. Note
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment III - Quartering of soldiers. Ratified 12/15/1791. Note
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV - Search and seizure. Ratified 12/15/1791.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI - Right to speedy trial, confrontation of witnesses. Ratified 12/15/1791.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment VII - Trial by jury in civil cases. Ratified 12/15/1791.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment VIII - Cruel and Unusual punishment. Ratified 12/15/1791.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX - Construction of Constitution. Ratified 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X - Powers of the States and People. Ratified 12/15/1791. Note
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Amendment XI - Judicial Limits. Ratified 2/7/1795. Note History
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Amendment XII - Choosing the President, Vice-President. Ratified 6/15/1804. Note History The Electoral College
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Amendment XIII - Slavery Abolished. Ratified 12/6/1865. History
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate legislation.
Amendment XIV - Citizenship rights. Ratified 7/9/1868. Note History
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Amendment XV - Race no bar to vote. Ratified 2/3/1870. History
1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XVI - Income taxes authorized. Ratified 2/3/1913. Note History
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
Amendment XVII - Senators elected by popular vote. Ratified 4/8/1913. History
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Amendment XVIII - Liquor abolished. Ratified 1/16/1919. Repealed by Amendment XXI, 12/5/1933. History
1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Amendment XIX - Women's suffrage. Ratified 8/18/1920. History
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Amendment XX - Presidential, Congressional terms. Ratified 1/23/1933. History
1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
Amendment XXI - Amendment XVIII repealed. Ratified 12/5/1933. History
1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Amendment XXII - Presidential term limits. Ratified 2/27/1951. History
1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
Amendment XXIII - Presidential vote for District of Columbia. Ratified 3/29/1961. History
1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXIV - Poll tax barred. Ratified 1/23/1964. History
1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXV - Presidential disability and succession. Ratified 2/10/1967. Note History
1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Amendment XXVI - Voting age set to 18 years. Ratified 7/1/1971. History
1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXVII - Congressional pay increases. Ratified 5/7/1992. History
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
OK I say it is Amendment XVI, taxation. XVIII tried to abolish liquor but was soon repealed.
Other than taxation, find one amendment to the Constitution that limits the rights of people. But activist neocons want to amend it to do just that, hence my derision at their self-proclaimed conservativism.
ichi
they intend to remake the judiciary in their image, installing activist judges who will rule in the 'proper' way.No they intend to appoint judges who will decide matters based on what the constitution says. Not on what they want it to say.
Saying so doesn't make it so, my honorable friend. NeoCons want people in judicial power who will make rulings based not on what the Constitution says, but what the Bible says, and what the NeoCons want them to say.
No matter how many times you contradict me, the facts speak for themselves.
ichi :bow:
GodsPetMonkey
05-26-2005, 04:15
Where exactly is this "leftist bias" conservatives complain about in the judiciary?
Along with "liberal media bias", it exists in the part of peoples mind that says "anyone who doesn't agree with me is a ".
It's probably all due to a hormonal imbalance, or if you subscribe to Freud, it's down to the mother.
AntiochusIII
05-26-2005, 04:29
Along with "liberal media bias", it exists in the part of peoples mind that says "anyone who doesn't agree with me is a ".
It's probably all due to a hormonal imbalance, or if you subscribe to Freud, it's down to the mother.Most likely it'll be that human nature you're talking about. The human nature of control and imposition. That's why I always uphold liberalism at its core: it is the idea against imposition. But I see that some people seem to misunderstand the lack of imposition as some other side's imposition.
GodsPetMonkey
05-26-2005, 04:36
Most likely it'll be that human nature you're talking about. The human nature of control and imposition. That's why I always uphold liberalism at its core: it is the idea against imposition. But I see that some people seem to misunderstand the lack of imposition as some other side's imposition.
It was meant to be sarcastic, but this is exactly what I was getting at...
Really, its all in the eye of the beholder.
Gawain of Orkeny
05-26-2005, 05:57
Saying so doesn't make it so, my honorable friend. NeoCons want people in judicial power who will make rulings based not on what the Constitution says, but what the Bible says, and what the NeoCons want them to say.
OK give me an example of one of these laws they want passed? One they want passed by judicial activism that is and not by the congress. What law do they want to make to take anyones right away? Again an amendment to the constitution is not judicial activism. Most conservatives dont agree with the gay marriage amendment either but the liberals are forcing the issue.
bmolsson
05-26-2005, 07:51
Shoot me for arrogance, but I can't help being amazed sometimes that Americans have such a hard time understanding how damn smart their Founding Fathers actually were.
Not bad at all for a bunch of renegade insurgents..... ~;)
Gawain of Orkeny
05-26-2005, 15:21
Shoot me for arrogance, but I can't help being amazed sometimes that Americans have such a hard time understanding how damn smart their Founding Fathers actually were.
We conservatives think they were smart. Its the liberals who want to re wriite the constitution according to their own beliefs.
Adrian II
05-26-2005, 23:59
I do not think any one founding father captures the spirit of our constitution (Madision comes close, as he was the person drafting most of it, but he was a supporter of the Virginia Plan, which may have ended up being better anyways), but it is captured in the compromises that all of them made in how they would share power amongst the states, and how they all wished to protect each other's rights, in interest of their own really, with a written constitution.Not Madison. There's more to that man, it is that dark wisdom that you see in only the truly great minds of political philosophy like Plato, Machiavelli, Montesquieu. And not, alas, in the charming populist Jefferson (yes Madame, I will see you at the forest edge tomorrow at 6.00, the choice of weapon is yours).
Today Madison's views are vindicated even in the context of the Bush foreign policy revolution. We are witnessing a complete departure from the way American presidents since WWII have managed international affairs. No more priority to transnational institutions, no respect for treaty obligations, illegal wars, a national security policy that propagates pre-emptive strikes and other measures and considerations that have no standing in international law.
And within this wider context comes the introduction of officially sanctioned torture (under various semantic guises), unlawful detention and deportation; three different breaches of humanitarian law that have caught worldwide attention precisely because the U.S. government denied they were breaches in the first place, suggesting that this behaviour is equally acceptable for other nations and in other regions, from Israel to Uzbekistan and Chechnya to Congo/Zaire.
Washington's highhandedness has been very costly for the country itself, too. Longstanding U.S. allies (Britain most of all) now merely 'support' the U.S. in order to function as a brake on an even more desastrous exercise of U.S. power. Most allies have just turned their back on the U.S. even though they will not admit it as long as they are in the midst of a policy break-up and the formation of new alliances. But the process is happening at a tremedous pace -- even Greece and Turkey are now finding common ground and improving relations, a process rooted in a shared anti-American attitude that will bring Turkey closer to EU membership than it has ever been. There will be no takers for new U.S. wars in the Middle East except maybe Palau.
The way things will be going is demonstrated most clearly by the last Iraq war. In 1991 practically the whole world wanted to (help) liberate Kuwait, many countries provieded troops, Japan and Saudi Arabia paid for the whole show and even the Soviet Union applauded applauded from the sidelines. Not this time. Even though quite a few countries shared an interest in getting rid of Saddam Hussein, but few were prepared to follow the U.S. and go to war for it outside the UN. And even though most share an interest in stabilizing postwar Iraq, they will not join the post-war 'pacification' and 'reconstruction' efforts. So the U.S. alone is left to provide the troops, suffer the casualties and foot the bill.
This is desastrously bad leadership, and it vindicates what Madison (and not, I believe, Hamilton) wrote in Federalist Paper #63:
An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?
Of course one might argue that the U.S. is in every sense much stronger and more dominant than it ever was in the late eighteenth century. But I would counter with the fact that almost every important challenge the U.S. faces nowadays is international in nature -- terrorism, WMD proliferation, economic ooperation, environmental problems, epidemic diseases, etcetera -- and wil require international cooperation to deal with them.
Well, as I said: Washington will always have Palau. Oh, and Micronesia, bless them.
Goofball
05-27-2005, 00:12
We conservatives think they were smart. Its the liberals who want to re wriite the constitution according to their own beliefs.
I don't understand. You seem to be in favor of using constitutional amendments in order to make changes (at least you are when you agree with the specific changes, such as forbidding gays to marry), yet here you are railing against liberals trying to rewrite the constitution. Liberals have been doing nothing of the sort. Maybe the fact that even judges appointed by Republican Presidents rule in favor of the Constitution and against imposing Christian morality should be a bit of a hint to you: those judges are ruling fairly and impartially, and setting their own view aside in order that the intent of your founding fathers not be warped.
I don't understand. You seem to be in favor of using constitutional amendments in order to make changes (at least you are when you agree with the specific changes, such as forbidding gays to marry), yet here you are railing against liberals trying to rewrite the constitution. Liberals have been doing nothing of the sort. Maybe the fact that even judges appointed by Republican Presidents rule in favor of the Constitution and against imposing Christian morality should be a bit of a hint to you: those judges are ruling fairly and impartially, and setting their own view aside in order that the intent of your founding fathers not be warped.
I don't know about Gaiwan - but I am all for allowing the democratic process as established by the founding fathers of this nation for the constitution to be admended for what the popular will of the people want. Be it something I am for - or even against. As long as the process that was placed in the Constitution for just such a process is followed and allowed to happen without interference from the courts or the executive branch of the government.
For instance what the Supreme Court of Mass did could be seen as circumventing the constitutional process of their state. If I remember correctly the courts placed a date for the legislative process to be completed - which is in my opinion a violation of the constitutional process, futhermore the court told the legislative body what had to be included in the law for that state. Which is again court interference in the legislative process. When the courts makes a judicial review of a constitutional admendment or a legislative law - the judicial review is suppose to be only to inform the state legislative body that the law as written is unconstitutional or constitutional. Anything else violates that principle. Now I could be mistaken about the Mass Supreme COurt ruling and its the actual wording of their decision - but I believe my statement about the intent of judicial review is what the Federalist Papers say. But its been a long time since I last read them. It might be time to read them once again.
Gawain of Orkeny
05-27-2005, 00:32
I don't understand.
Ill try to explain it to you then ~;)
You seem to be in favor of using constitutional amendments in order to make changes (at least you are when you agree with the specific changes, such as forbidding gays to marry),
Read my post again. I said no such thing. I said I oppose it but that liberals are pushing many conservatives to the point where they will vote for it. If it or any other amendment is passed as according to the constitution then I may oppose it but it should stand.
Liberals have been doing nothing of the sort.
THey havent amended the constitution theve had judges re interpret it. If they could have passed an abortion amendment then it would be different. They could never get such a thing passed by the majority and they know it. Thats why they resort to activist judges.
Maybe the fact that even judges appointed by Republican Presidents rule in favor of the Constitution and against imposing Christian morality should be a bit of a hint to you:
Nice rehtoric but give me an example. The fact is that even judges appointed by Republican Presidents have not always ruled impartialy.
those judges are ruling fairly and impartially, and setting their own view aside in order that the intent of your founding fathers not be warped.
Thats the biggest load of BS ive seen here yet. Theve totally warped the constitution to say what they want. I guess if they agree with you their fair and impartial no matter what the constitution says.
Adrian II
05-27-2005, 00:37
Thats the biggest load of BS ive seen here yet.This is what Madison aptly called 'the pestilential breath of faction', one of the main 'threats to the fountain of justice'. It's a good thing they gave those nine Justices lifelong tenure and comfortable chairs to sit on.
~D
Gawain of Orkeny
05-27-2005, 00:50
This is what Madison aptly called 'the pestilential breath of faction', one of the main 'threats to the fountain of justice'. It's a good thing they gave those nine Justices lifelong tenure and comfortable chairs to sit on.
He didnt want them voting on party lines and neither do I or other conservatives. We want them to go by what the the constitution says not by what they would like it to say. Politics shouldnt have a bearing on their procedures. Instead theve taken this life long tenure and made it joke. They think their gods. Actually their just a bunch of old lawyers.
OK give me an example of one of these laws they want passed?
The clearest example is a prohibition against abortion, but flag-burning and restrictions against gay marriage are others. Limitations on freedom of speech, travel, assembly, and the establishment of religion are also in this category.
One they want passed by judicial activism that is and not by the congress. What law do they want to make to take anyones right away? Again an amendment to the constitution is not judicial activism.
Activism is activism, whether judicial or congressional. I can see that the next thing to address will be the concept that it is OK for The Congress to pass whatever crazy law they want because they are elected but if a judge strikes down a law because it is unconstitutional then he is 'out of bounds'. Clearly a failure in understanding the system.
Most conservatives dont agree with the gay marriage amendment either but the liberals are forcing the issue.
Gays and lesbians are forcing the issue, and most folks (even many conservatives here in Utah) realize that allowing people the ability to exercise their right to love and marry and reap the benefits of this great nation regardless of their sexual preference, but this threatens the fundamentalist Christians. They are driving most of this, trying not to impose a State-sponsored religion, but to impose a religiously-dominated government.
ichi :bow:
Ichi,
I'm confused on two things: your use of neocon and your use of judicial activism. Neocon, even with its myriad uses, is primarily concerned with foreign policy. You are applying it to jurisprudence, why? Judicial activism refers to Judges assuming legislative perogative. Wanting to pass an Amendment is not an example of Judicial activism neither is any action that occurs within the legislative arena. What are you thinking of as examples of judicial activism from the Conservative mainline?
NeoCon is usually associated with foreign policy, but the principles are also readily apparent in the domestic arena.
I use the term NeoCon to differentiate what currently passes itself off as conservativism, but is in reality religious social activism, from true conservative philosophy. NeoCons want to use government power, true conservatives would minimize the role of government.
I didn't start the practice of throwing 'judicial activism' around as a pejorative. I simply argued that so-called conservatives complain of liberal judicial activism when what they really object to is judicial impedance of the NeoCon social agenda, which they have attempted to impose from The Congress and the White House.
I said that they want to stock the bench with people who won't oppose this agenda on a Constitutional basis.
ichi :bow:
Gawain of Orkeny
05-27-2005, 02:09
I use the term NeoCon to differentiate what currently passes itself off as conservativism, but is in reality religious social activism, from true conservative philosophy. NeoCons want to use government power, true conservatives would minimize the role of government.
In other words you have your own definition of NeoCon.
I didn't start the practice of throwing 'judicial activism' around as a pejorative. I simply argued that so-called conservatives complain of liberal judicial activism when what they really object to is judicial impedance of the NeoCon social agenda, which they have attempted to impose from The Congress and the White House.
No what we really object to is judicial pushing of the liberal social agenda which they can not get to pass in the congress or the Whitehouse.
I said that they want to stock the bench with people who won't oppose this agenda on a Constitutional basis.
Thats what you say but its not the truth. Not that Im calling you a liar , just confused. We want judges who go by what the constitution says not by their interpretation of what they think it should say.
In other words you have your own definition of NeoCon.
Nice try, but NeoCon is a generally accepted term, and I use it within the norm of conventional speaking. Maybe some of you aren't familiar with the term, or perhaps you've only seen it used a limited context.
For example
http://www.lewrockwell.com/dmccarthy/dmccarthy14.html
Are You a Neocon?
by Daniel McCarthy
Regular readers of LRC or other right-of-center sites are sure to have seen terms like "neoconservative" and "paleo-libertarian" from time to time. A quick Google search can explain what the words mean, but definitions don’t really answer the more interesting and important question – which one are you?
Naturally you might be neither "paleo" nor "neo." But for those who’d like to find out I devised a quick quiz during a spell of procrastination a few months back. Here it is. After answering twenty questions it’ll give you my impression of which of ten modern American ideologies is the best fit for you, along with links to sites representing the philosophy of each.
There’s no shortage of political quizzes on the ‘net, but how many others includes "paleoconservative" and "third way" as categories? Not many (or any) that I’ve seen. And to be thoroughly immodest, this quiz is less slanted than most too. I’m a pale-something myself though, so if you find bias that’s where I’m coming from. Other than that the major flaw is that I don’t know modern left-wing ideologies at all well, so the categories of "radical," "liberal" and "third-way" probably are not how leftists would classify themselves.
The quiz questions are mostly about public policy. An alternative method would have been to ask general philosophical questions, or even to ask for interpretations of historical events. I chose the policy-oriented approach because it seemed most straightforward and clear.
Here, in brief, are the ideologies that the quiz examines. You’ll probalby want to take the quiz first though. The sketches below aren’t an answer key, but you can probably deduce from the definitions how someone of a given ideology would answer a particular question. That’s the entire principle of the quiz, after all.
Centrist – Just what it sounds like. Someone who doesn’t have any particularly strong ideological leanings in any direction.
Conservative – Specifically a "fusionist" conservative of the National Review - Heritage Foundation mold. Someone who believes in traditional morality and capitalism, and the need for a limited government to allow both to flourish.
Left-libertarian – The quiz uses a mild definition of a left-libertarian, an anti-statist who is somewhat fearful of corporate and religious influence on public life.
Liberal – Supports economic regulation to promote social justice and takes a progressive stance toward moral or cultural issues.
Libertarian – A libertarian opposes most or all government activites. Does not favor much or any government support for either moral or economic systems.
Neoconservative – A "neocon" is more inclined than other conservatives toward vigorous government in the service of the goals of traditional morality and pro-business policies. Tends to favor a very strong foreign policy of America as well.
Paleoconservative – "Paleocons" want less US involvement in foeign affairs than other conservatives and oppose mass immigration. They are also more favorably disposed toward the South and the idea of secession, or at least decentralization, than neoconservatives.
Paleo-libertarian – Similar to other libertarians except for oppostion to mass immigration, and shares the paleocon appreciation of the South.
Radical – Critical of bouregois morality and strongly opposed to capitalism and willing to use state power to achieve desired ends.
Third-way – More supportive of foreign intervention than liberals and less supportive of economic regulation, coupled with more-or-less progressive social views. "Third-way" is to liberal what neoconservative is to conservative.
June 26, 2001
Note the date, its been around for a while.
Thats what you say but its not the truth. Not that Im calling you a liar , just confused. We want judges who go by what the constitution says not by their interpretation of what they think it should say.
One thing that I've learned is that I don't have the time or energy or motivation to outpost you, and that you will continue to repeat the same sentiment until I get bored.
No, I disagree, as I've said. NeoCons want judges who won't block their radical social agenda with that tiresome old Constitution. You say you want strict Constitutionalists, but you also threaten to revise the Constitution every time you get stymied. The real truth is that a judge who reads limits on government power into the Constitution is probably going to thwart religious social legislative activism, and since you can't argue with that, you want to place people who will 'interpret' the Constitution the way you want it interpreted.
I just wish you'all would be honest about it, stop deceiving everybody by shouting 'activist' when the courts do their job.
oh and I'm not confused, I see quite clearly. As always you have shifted the argument from the pertient issues and onto me
In other words you have your own definition of NeoCon.
Not that Im calling you a liar , just confused.
and Goofball
I guess if they agree with you their fair and impartial no matter what the constitution says.
why do you have to imply that only you are fair and objective, while the rest of us are only able to see things the way we want them?
ichi :bow:
Gawain of Orkeny
05-27-2005, 03:24
You say you want strict Constitutionalists, but you also threaten to revise the Constitution every time you get stymied
Again you putting words in my mouth. I said I oppose the gay marriage amendment as its not the job of the federal government to intefere with the states on marriage laws. I think the constitution should only be amended under dire circumstances. Maybe you havent noticed but it hasnt been conservatives that have been stymied by the congress. We can and do get our issues passed by popular referendum only to have some liberal activist juudge shoot it down. You havent been able to show one recent case of judicial activism on the side of conservatives.
What the Heck Is a Neocon?
by Max Boot
Wall Street Journal
December 30, 2002
I have been called many names in my career -- few of them printable -- but the most mystifying has to be "neocon." I suppose I get labeled thus because I am associated, in a small way, with the Weekly Standard, which is known as a redoubt of "neoconservatism."
But what the heck is a neocon anyway in 2003? A friend of mine suggests it means the kind of right-winger a liberal wouldn't be embarrassed to have over for cocktails. That's as good a definition as any, since the term has clearly come unmoored from its original meaning.
'Mugged by Reality'
The original neocons were a band of liberal intellectuals who rebelled against the Democratic Party's leftward drift on defense issues in the 1970s. At first the neocons clustered around Sen. Henry "Scoop" Jackson, a Democrat, but then they aligned themselves with Ronald Reagan and the Republicans, who promised to confront Soviet expansionism. The neocons, in the famous formulation of one of their leaders, Irving Kristol, were "liberals mugged by reality."
Well, I haven't been mugged lately. I haven't even been accosted. I like to think I've been in touch with reality from day one, since I've never been a Trotskyite, a Maoist or even a Democrat. There's no "neo" in my conservatism. I don't deserve much credit for this, I might add, since I grew up in the 1980s, when conservatism was cool. Many of the original neocons, by contrast, grew up in the days when Republicans were derided as "the stupid party." Some of them remain registered Democrats. But I've always identified with the Grand Old Party. The same might be said of the other Standard-bearers, even those (like Bill Kristol and John Podhoretz) who are the offspring of famous neocons. They, too, have been right from the start.
So why do I, and others of my ilk, get tagged as "neocons"? Some of the labelers have obvious ulterior motives. Patrick Buchanan, for one, claims that his views represent the true faith of the American right. He wants to drive the neocon infidels from the temple (or, more accurately, from the church). Unfortunately for Mr. Buchanan, his version of conservatism -- nativist, protectionist, isolationist -- attracts few followers, as evidenced by his poor showings in Republican presidential primaries and the scant influence of his inaptly named magazine, the American Conservative. Buchananism isn't American conservatism as we understand it today. It's paleoconservatism, a poisonous brew that was last popular when Father Charles Coughlin, not Rush Limbaugh, was the leading conservative broadcaster in America.
When Buchananites toss around "neoconservative" -- and cite names like Wolfowitz and Cohen -- it sometimes sounds as if what they really mean is "Jewish conservative." This is a malicious slur on two levels. First, many of the leading neocons aren't Jewish; Jeane Kirkpatrick, Bill Bennett, Father John Neuhaus and Michael Novak aren't exactly menorah lighters. Second, support for Israel -- a key tenet of neoconservatism -- is hardly confined to Jews; its strongest constituency in America happens to be among evangelical Christians.
So is "neoconservatism" worthless as a political label? Not entirely. In social policy, it stands for a broad sympathy with a traditionalist agenda and a rejection of extreme libertarianism. Neocons have led the charge to combat some of the wilder excesses of academia and the arts. But there is hardly an orthodoxy laid down by Neocon Central. I, for one, am not eager to ban either abortion or cloning, two hot-button issues on the religious right. On economic matters, neocons -- like pretty much all other Republicans, except for Mr. Buchanan and his five followers -- embrace a laissez-faire line, though they are not as troubled by the size of the welfare state as libertarians are.
But it is not really domestic policy that defines neoconservatism. This was a movement founded on foreign policy, and it is still here that neoconservatism carries the greatest meaning, even if its original raison d'être -- opposition to communism -- has disappeared.
Pretty much all conservatives today agree on the need for a strong, vigorous foreign policy. There is no constituency for isolationism on the right, outside the Buchananite fever swamps. The question is how to define our interventionism.
One group of conservatives believes that we should use armed force only to defend our vital national interests, narrowly defined. They believe that we should remove, or at least disarm, Saddam Hussein, but not occupy Iraq for any substantial period afterward. The idea of bringing democracy to the Middle East they denounce as a mad, hubristic dream likely to backfire with tragic consequences. This view, which goes under the somewhat self-congratulatory moniker of "realism," is championed by foreign-policy mandarins like Henry Kissinger, Brent Scowcroft and James Baker III.
Many conservatives think, however, that "realism" presents far too crabbed a view of American power and responsibility. They suggest that we need to promote our values, for the simple reason that liberal democracies rarely fight one another, sponsor terrorism, or use weapons of mass destruction. If we are to avoid another 9/11, they argue, we need to liberalize the Middle East -- a massive undertaking, to be sure, but better than the unspeakable alternative. And if this requires occupying Iraq for an extended period, so be it; we did it with Germany, Japan and Italy, and we can do it again.
The most prominent champions of this view inside the administration are Vice President Dick Cheney and Deputy Defense Secretary Paul Wolfowitz. Their agenda is known as "neoconservatism," though a more accurate term might be "hard Wilsonianism." Advocates of this view embrace Woodrow Wilson's championing of American ideals but reject his reliance on international organizations and treaties to accomplish our objectives. ("Soft Wilsonians," a k a liberals, place their reliance, in Charles Krauthammer's trenchant phrase, on paper, not power.) Like Theodore Roosevelt, Franklin Roosevelt and Ronald Reagan, "hard Wilsonians" want to use American might to promote American ideals.
The Good Fight
This is, in case you haven't guessed, my own view too. So I guess that makes me a neocon. It's a designation I'm willing -- nay, honored -- to accept, if it comes with a caveat: Neoconservatism -- like other political descriptions, such as "liberal" and "conservative" -- has entirely lost its original meaning. It no longer means that you're a Johnny-come-lately to the good fight, and -- contrary to Mr. Buchanan's aspersions -- neocons are no less conservative than anyone else on the right.
Actually that's an understatement. Neocons are closer to the mainstream of the Republican Party today than any competing faction. During the 2000 campaign, President Bush sounded very much like a realist, with his suspicions of "nation building" and his warnings about American hubris. Then along came 9/11. The National Security Strategy that he released in September -- which calls for "encouraging free and open societies on every continent" -- sounds as if it could have come straight from the pages of Commentary magazine, the neocon bible.
I suppose that makes George W. Bush a neocon. If it's good enough for the president, it's good enough for me.
Neoconservatism -- like other political descriptions, such as "liberal" and "conservative" -- has entirely lost its original meaning.
Well, he's correct about the terms liberal and conservative.
The rest is, I think, his very narrow interpretation.
Regardless of how this guy feels, I'm using NeoCon in the sense described above (and many other places).
ichi :bow:
NeoCon is usually associated with foreign policy, but the principles are also readily apparent in the domestic arena.
I use the term NeoCon to differentiate what currently passes itself off as conservativism, but is in reality religious social activism, from true conservative philosophy. NeoCons want to use government power, true conservatives would minimize the role of government.
I didn't start the practice of throwing 'judicial activism' around as a pejorative. I simply argued that so-called conservatives complain of liberal judicial activism when what they really object to is judicial impedance of the NeoCon social agenda, which they have attempted to impose from The Congress and the White House.
I said that they want to stock the bench with people who won't oppose this agenda on a Constitutional basis.
ichi :bow:
I see. Do you feel the rise of the religious right as a political force as a neocon template? You didn't give any examples. Let me see if these two fit your criteria. In Kansas school boards have made a few rulings on teaching creationism along side evolution in the classroom. This happened because religious right groups focused on winning seats on the school boards during elections. Would this qualify? A few years ago in the Northwest bones were uncovered of a man. The initial findings were that the skeletal remains were thousands of years old and might have been of a different racial group than the indigenous Indian population. Tribal groups in the area petitioned the Courts to have the remains remanded to them on the grounds these were sacred artifacts not to be subject to or scrutinized by science. Would this be an example? Now these are not parallel cases. One the one hand we have groups working through the established legislative system to achieve an end. The other group attempts to achieve an end through judicial appeal. Regardless the merits, both groups are involved in a social activism. Are they both neocon and therefore subject to your ire?
Regarding judicial activism: I believe you mentioned two particular cases early in the discussion: abortion and gay marriage. If we take these two as case studies do either support your position? The 1973 Court ruling on abortion with its attendant creation of a right to privacy pushed both notions onto the national social agenda. Previously, abortion had been a state issue, meaning it was decided by state legislatures and was thereby subject to popular will. The traditional objection to Roe is the Court creation of a right to abortion and privacy: neither of which exist in the Constitution and the Court assumption of legislative authority. Supporters of Roe see the decision as socially progressive and opposition as reactionary. I think that is the standard refrain. If I'm correct how does this fit into your charge? There is right creation by extra-legislative judicial fiat and the conservative opposition is defending the prior standard. This doesn't appear to be judicial impedance, but judicial action.
The 2004 Mass. Supreme Court declared that the state could not withhold the obligations and benefits of marriage from same sex partners and gave the state legislature 180 days to take action. The origins of this case was a 2001 suit brought by seven gay couples who sued the state for denying their marriage licenses. The case had been summarily dismissed by a Superior Court on the grounds no such right to gay marriage existed. The Mass. Supreme Court overturned the Superior Court ruling in a 5 to 4 decision. Due to the "full faith an credit" clause in the Constitution other states felt this action would compel them to recognize gay marriages performed in Mass. President Bush's call for an Amendment to the Constitution was in reaction to this. This doesn't appear to be judicial impedance but judicial action as well.
I'm not sure I understand your charge. The Marriage Amendment is a legislative action. It does not involve the Courts. Neither example (both of which draw massive coverage and controversy) seem to support you position. Perhaps your thinking of something else.
Very well put, Pindar. This is just about the most succinct explanation of the issue I've seen. :bow:
Would this qualify? A few years ago in the Northwest bones were uncovered of a man. The initial findings were that the skeletal remains were thousands of years old and might have been of a different racial group than the indigenous Indian population. Tribal groups in the area petitioned the Courts to have the remains remanded to them on the grounds these were sacred artifacts not to be subject to or scrutinized by science. Would this be an example? Now these are not parallel cases. One the one hand we have groups working through the established legislative system to achieve an end. The other group attempts to achieve an end through judicial appeal. Regardless the merits, both groups are involved in a social activism.
No, this doesn't qualify nor is it judicial activism. The tribes have a religious/spiritual motivation to care for remains that they (mistakenly) assumed to be their ancestors. They made a claim, but the court case was brought by scientists who wanted to study the find, which was determined to not be related to the more recent tribes.
Judicial activism, as I see it, requires a member of the bench to interpret existing legal precedence in a way that promotes his/her social agenda. Not at all pertinent. Perhaps you're thinking of something else.
In Kansas school boards have made a few rulings on teaching creationism along side evolution in the classroom. This happened because religious right groups focused on winning seats on the school boards during elections. Would this qualify?
Yes this is religious motivated social activism. Others (maybe you too) contend that this is acceptable because a majority support it. These folks got elected so they get to decide, or so the theory goes.
The analogy would be that had the Nazis prevailed, they would have taught that the Holocaust was a good thing. But that wouldn't make it right, or true. Mob rule is obvious, but there are problems any time a majority, even through legal means, can order the teaching of lies, even lies in the name of God.
So just because the majority of Kansasians support those on the school board who want ot push Creationism, its still social activism, because it involves a group pushing a specific social agenda. The great thing about the US is that our system allows people to pursue their agendas.
Are they both neocon and therefore subject to your ire?
Our system also allows me to think they are nuts, and to say so in public. Does that invoke your ire?
neither of which exist in the Constitution and the Court assumption of legislative authority
Basically an unsupported (and in fact explicitly contradicted) feeling on your part. See the above references to the 9th Amendment. I think your sentence would correct if you stated "which I think do not exist in the Constitution and the Court assumption of legislative authority".
As far as the rest of it I've already addressed these points above. So-called conservatives (who are really radical activists) want to use the Constitution to limit the rights of people, which isn't the purpose of the document. The SC and others have already acknowledged that these rights exist. The right calls these judges activists, but the right ignores the legal precedent.
The case had been summarily dismissed by a Superior Court on the grounds no such right to gay marriage existed. The Mass. Supreme Court overturned the Superior Court ruling in a 5 to 4 decision.
The NeoCons would have you believe that the Superior Court ruling was the proper exercise of judicial review, focused on strict and appropriate interpretation of the Constitution and other laws, including case law, but that the Supreme Court ruling was judicial activism by liberals intend on creating hitherto unacknowledged rights.
Bullsh!t. This is the fallacy at the heart of the whole controversy, and it shows that the new right isn't interested in preserving the Constitution, they want judges who will see things their way - the height of hypocrisy cause that's what they accuse the liberal left of doing.
The Superior Court decision was based on narrow issues associated with the appeal, while the Supreme Court decison was based on the Equal Protection Clause.
The XIV Amendment
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Why is it unconstitutional to say that a person can love and marry and recieve the rights and benefits of marriage regardless of the sex of their partner?
Answer, it isn't unconstitutional, but it is procribed by the Bible. Imposing biblical law over secular law violates the amendment prohibiting the establishment of religion.
I'm not sure I understand your charge. The Marriage Amendment is a legislative action. It does not involve the Courts. Neither example (both of which draw massive coverage and controversy) seem to support you position.
I'm disappointed. Several folks seem to want to make a distinction between judicial and legislative activism, but that's a bit of a misdirection trick. Yes, the Marriage Amendment is a legislative action. I'll go through the steps once more.
The Courts have held that prohibitions against gay marriage are unconstitutional. The Biblical right hates this, so they hurl accusations of judicial activism, then propose to revise the Constitution (and stack the bench) in order to protect its integrity form those damn liberal judicial activists (who will be outnumbered by the right's own activists). This is hypocrisy at its worse.
. . . I simply argued that so-called conservatives complain of liberal judicial activism when what they really object to is judicial impedance of the NeoCon social agenda, which they have attempted to impose from The Congress and the White House.
I said that they want to stock the bench with people who won't oppose this agenda on a Constitutional basis.
ichi :bow:
Goofball
05-27-2005, 17:49
Liberals have been doing nothing of the sort.THey havent amended the constitution theve had judges re interpret it. If they could have passed an abortion amendment then it would be different. They could never get such a thing passed by the majority and they know it. Thats why they resort to activist judges.
Really? Please explain to me how the nefarious liberal forces of evil have somehow forced a supreme court packed with conservatives (7 out of 9) to bend to the evil liberal agenda. Even when the Roe v. Wade decision came down, it was from a Supreme Court whose majority had been appointed by Republicans.
You conservatives really kill me.
You currently control both the houses of Congress, the Supreme Court, and the Oval Office, all three branches of your government, yet the rest of us still have to listen to your paranoid whining about how you are at the mercy of the liberal agenda.
Give me a break...
No, this doesn't qualify nor is it judicial activism. The tribes have a religious/spiritual motivation to care for remains that they (mistakenly) assumed to be their ancestors. They made a claim, but the court case was brought by scientists who wanted to study the find, which was determined to not be related to the more recent tribes.
Judicial activism, as I see it, requires a member of the bench to interpret existing legal precedence in a way that promotes his/her social agenda. Not at all pertinent. Perhaps you're thinking of something else.
I was asking if the Indian case would qualify as neocon by your definition.
Yes this is religious motivated social activism. Others (maybe you too) contend that this is acceptable because a majority support it. These folks got elected so they get to decide, or so the theory goes.
Does this mean you reject the majoritarian process?
The traditional objection to Roe is the Court creation of a right to abortion and privacy: neither of which exist in the Constitution and the Court assumption of legislative authority.
Basically an unsupported (and in fact explicitly contradicted) feeling on your part. See the above references to the 9th Amendment. I think your sentence would correct if you stated "which I think do not exist in the Constitution and the Court assumption of legislative authority".
I believe this is exactly the opposing view to Roe. Now, as far as the facticity of the claim: there is no explicit contradiction. There is no reference to abortion or privacy in the Constitution. If you wish to infer that right based on a reading of the Amendment IX or base it on some other penumbra you can do so, but this was not traditionally the case, at least until 1965. Further, the IX Amendment is often seen to mean that rights could be expansive, not that any rights claim exist simply through the assertion. Rights are political acts they exist only insofar as they have been given legal standing and not before. A simple example and perhaps apropos given your State is 1878 Reynolds v US. Here a right to polygamy was argued as falling under the freedom of religion clause. The Court struck this down. Part of the majority opinion was that belief is protected, but practice is not. Whatever right was claimed, it was ultimately beholden to Federal recognition.
As far as Court assumption of legislative authority: Roe is typically given as a prime example of this very action, though there are others. The Court declared abortion legal. It is therefore determining what law is. This is a legislative domain. There is precedent for this going back the beginnings of the Nineteenth Century (this is commonly known as Judicial Review) but that does not change the basic structure of the decision. Typically abortion advocates and detractors agree on this point. The disagreement is whether the Court legitimately has this power.
The NeoCons would have you believe that the Superior Court ruling was the proper exercise of judicial review, focused on strict and appropriate interpretation of the Constitution and other laws, including case law, but that the Supreme Court ruling was judicial activism by liberals intend on creating hitherto unacknowledged rights.
Bullsh!t. This is the fallacy at the heart of the whole controversy...
Are you arguing that Gay Marriage was a previously acknowledged right? If so, how far back does it go? If it wasn't acknowledged at some point, and you claim it as a right, then it must have been created. How this was created then becomes the issue. If a rights claim is not first subject to popular will where is the legitimacy of the claim?
Why is it unconstitutional to say that a person can love and marry and recieve the rights and benefits of marriage regardless of the sex of their partner?
Answer, it isn't unconstitutional, but it is procribed by the Bible. Imposing biblical law over secular law violates the amendment prohibiting the establishment of religion.
Love and marriage are not at issue. One can do either now. State sanction is another matter. State sanction requires codification. This also applies to rights. A rights claim without codification has no standing.
I'm disappointed. Several folks seem to want to make a distinction between judicial and legislative activism, but that's a bit of a misdirection trick. Yes, the Marriage Amendment is a legislative action. I'll go through the steps once more.
The Courts have held that prohibitions against gay marriage are unconstitutional. The Biblical right hates this, so they hurl accusations of judicial activism, then propose to revise the Constitution (and stack the bench) in order to protect its integrity form those damn liberal judicial activists (who will be outnumbered by the right's own activists). This is hypocrisy at its worse.
Legislative action and Judicial action are distinct. They are separate Branches and operate independently of each other. An Amendment proposal does not go through the Judiciary it is confined to the Legislature (both Federal and State). The Amendment process is not an example of judicial activism nor is it an example of 'stacking the bench' (which refers to adding more Justices to the Court than normally appointed).
ichi :bow:
You add a bow after hurling sarcasm and invective? I don't understand the emotion and derision. I took your post seriously. I want to understand your view. I want to understand your view because it seems so different from any normal discussion I have seen on Judicial activism. It seems historically and conceptually flawed, but I want to understand why you think as you do.
Goofball
05-27-2005, 20:37
You add a bow after hurling sarcasm and invective? I don't understand the emotion and derision. I took your post seriously. I want to understand your view. I want to understand your view because it seems so different from any normal discussion I have seen on Judicial activism. It seems historically and conceptually flawed, but I want to understand why you think as you do.
Not that Ichi needs anybody to speak for him, but I for one found that his post (in fact, all of his posts in this thread) stated his position quite clearly and succinctly. And I detected no "hurling of sarcasm and invective."
At any rate, his position makes perfect sense to me. It is not liberals who are trying to change the meaning/intent of the Constitution. It is actually a case of radical right wingers trying to change/twist the Constitution in order to impose their morality on the population as a whole. All the judiciary is doing is defending the intent of your founding fathers against these attacks on the spirit of freedom and equality.
Taffy_is_a_Taff
05-27-2005, 21:35
I'm sure that the Jewish leading lights of the Neo-Con movement would be very interested to hear that they are Christian activists.
Although they may be up to something , after all the Neo-Cons are just another "sly Zionist cabal" don't you know.
Gawain of Orkeny
05-27-2005, 21:46
Really? Please explain to me how the nefarious liberal forces of evil have somehow forced a supreme court packed with conservatives (7 out of 9) to bend to the evil liberal agenda. Even when the Roe v. Wade decision came down, it was from a Supreme Court whose majority had been appointed by Republicans.
Just because they were nominated by a republican president doesnt make them conservatives. You go by their rulings not who appionted them. They are clearly if not liberal then, they are certainly not strict constitutionalists.
At any rate, his position makes perfect sense to me. It is not liberals who are trying to change the meaning/intent of the Constitution. It is actually a case of radical right wingers trying to change/twist the Constitution in order to impose their morality on the population as a whole. All the judiciary is doing is defending the intent of your founding fathers against these attacks on the spirit of freedom and equality.
Of course because you like him dont understand what your talking about. Neither of you can give 1 example of conservative judicial activism. Thats because there isnt any at the moment. Yet you keep saying its the conservatives who want to re write the constitution. The judiciary isnt doing what you say it is. Its writting new law which isnt its job.
Goofball
05-27-2005, 22:03
Just because they were nominated by a republican president doesnt make them conservatives. You go by their rulings not who appionted them. They are clearly if not liberal then, they are certainly not strict constitutionalists.
I guess that's where we differ then. I believe that they are upholding the intent of the Constitution. You say they are not, and apparently for no other reason other than you don't like their rulings.
Of course because you like him dont understand what your talking about.
It has nothing to do with me liking Ichi. After all, I like you, but I don't let that fact blind me to your misguidedness on this issue. ~;) I acknowledge, however, that it does have a lot to do with my agreeing with his position.
Neither of you can give 1 example of conservative judicial activism. Thats because there isnt any at the moment.
Exactly. Because the judiciary has for the most part done its job correctly and blocked conservative-driven attempts to have Christian morality written into law.
Gawain of Orkeny
05-27-2005, 22:33
I guess that's where we differ then. I believe that they are upholding the intent of the Constitution. You say they are not, and apparently for no other reason other than you don't like their rulings.
No I dont like it because theres nothing in the constitution to support their rulings and I challenge you to show me it.
Exactly. Because the judiciary has for the most part done its job correctly and blocked conservative-driven attempts to have Christian morality written into law.
So thats the job of the judiciary now? We are indeed reading a different constitution. Is it also its job them to advance liberal aethiestic ideals and have them forced on the rest of us no matter what laws we pass or what the constitution says?
Goofball
05-27-2005, 22:40
So thats the job of the judiciary now? We are indeed reading a different constitution. Is it also its job them to advance liberal aethiestic ideals and have them forced on the rest of us no matter what laws we pass or what the constitution says?
Sorry, but exactly what has been forced on you? The only thing that has been forced on you is a curtailment of your efforts to force your morality on others.
Gawain of Orkeny
05-27-2005, 22:54
Sorry, but exactly what has been forced on you? The only thing that has been forced on you is a curtailment of your efforts to force your morality on others.
Oh it doesnt occur to you that your morality , even though your view is in the minority, is being forced on the majority by judges who think as you and dont go by the constitution. You have no basis for your argument other than the same self indulgent belief as these judges that they know better than the founding fathers or the common man.
Goofball
05-27-2005, 23:06
Oh it doesnt occur to you that your morality , even though your view is in the minority, is being forced on the majority by judges who think as you and dont go by the constitution. You have no basis for your argument other than the same self indulgent belief as these judges that they know better than the founding fathers or the common man.
Again I ask: exactly what is being forced on conservatives?
Are pregnant women being rounded up and forced to have abortions?
No, but conservatives want to take away a woman's choice of what to do with her body.
Are Christians being forced to give up their religion?
No, but conservatives fought tooth and nail (they lost, thankfully) to force all children, Christian or not, to pray in public schools, and are still trying to sneak Christian mythology into science classes.
Are heterosexuals being herded into city halls at gunpoint where they are forced to marry members of the same sex?
No, but conservatives are doing everything they can to stop homosexuals from marrying the person they love.
Face it: you are the ones trying to force your morality on others, not the other way around.
Gawain of Orkeny
05-27-2005, 23:28
Again I ask: exactly what is being forced on conservatives?
Whats being forced on liberals? Whats being forced is the overturning of the will of the people and not just conservatives.
Are pregnant women being rounded up and forced to have abortions?
No, but conservatives want to take away a woman's choice of what to do with her body.
We do? She doesnt have total choice as it is . And what of the unborns choice in the matter or the fathers for that matter?
Are Christians being forced to give up their religion?
No but their ability to advance and proclaim it has been under attack. Exactly what the 1st amendment was meant to prevent.
No, but conservatives fought tooth and nail (they lost, thankfully) to force all children, Christian or not, to pray in public schools, and are still trying to sneak Christian mythology into science classes.
So now all christains are conservative and we all want creationism taught in school. LOL.
No, but conservatives are doing everything they can to stop homosexuals from marrying the person they love.
Again we are? None of these things involves judicial activism other than from the left. Yet the title of this thread is 'Where exactly is this "leftist bias" conservatives complain about in the judiciary' Then when we show it to you , you either deny its happening or say that what their supposed to do without backng it up with anything but rhetoric.
You show me in the constitution where it gives women the right to abortion, gays the right to marriage or forbids prayer in public schools.
A little history lesson
2. ORIGINAL INTENT: THE FRAMERS DID NOT INTEND THE SUPREME COURT TO BE THE ULTIMATE ARBITER OF ALL CONSTITUTIONAL ISSUES.
The doctrine of original intent holds that the legislature--not the judiciary--is the "predominant" branch5; that the judiciary was the "weakest" of the three branches of government.6 To the Founders, the opinion that the Supreme Court was the ultimate arbiter of all constitutional issues was "never proper,"7 and a "dangerous doctrine"8 which would lead to the judiciary becoming a "despotic branch."9 They were concerned that the federal judiciary would usurp all the powers from the States.10 This was the system of checks and balances implemented in the Constitution. Recall the Dred Scott decision in 185711 wherein the Supreme Court held that "a man of African descent, whether a slave or not, was not and could not be a citizen of a state of the United States." In other words, black slaves were not "persons" protected by the laws of the United States. In a collision of the federal branches, Abraham Lincoln issued the Emancipation Proclamation and the Congress passed the 13th amendment. Lincoln disregarded the Dred Scott decision because he did not wish to resign the future of the country "into the hands of that eminent tribunal."12 In other words, a century ago, our leaders believed that both the President and Congress had the Constitutional authority to pass "constitutional" laws or orders without waiting for Supreme Court review. And the President and Congress could disregard or overrule Supreme Court decisions that were contrary to natural law, like the Dred Scott decision, by issuing the Emancipation Proclamation and by passing the 13th Amendment, respectively. This was the original intent of the Framers concerning the checks and balances of our national government. Imagine the Dred Scott Court in the late 1800's declaring the Emancipation Proclamation "unconstitutional" or that the 13th amendment was not a "proper exercise" of Congress' powers.
Today, however, virtually everyone believes the "dangerous doctrine" that the Supreme Court is the ultimate authority on whether a law or policy is "constitutional." Legislation is not deemed "constitutional" until the Supreme Court has ruled. And for the Court to rule, a suit must be filed challenging the constitutionality of a statute. These suits are usually filed in federal court by an organization such as the ACLU which oftentimes uses the Court to further its own political agenda.13 A recent case in point: in January, 1997, the Congress, in response to its constituents and the concerns of parents, passed the Communications Decency Act (CDA) to protect children from pornography on the Internet. In keeping with its public position of favoring the rights of pornographers, the ACLU immediately filed a lawsuit in federal court arguing the CDA was "unconstitutional" in that it violated "free speech," i.e., pornography. In July, 1997, the Supreme Court declared the law unconstitutional and invalid.
LINK (http://earlyamerica.com/review/fall98/original.html)
Goofball
05-27-2005, 23:40
So now all christains are conservative and we all want creationism taught in school. LOL.
Nice try. I didn't use the word "all" as a modifier for the word conservatives or "Christians" anywhere in my post.
Again we are? None of these things involves judicial activism other than from the left. Yet the title of this thread is 'Where exactly is this "leftist bias" conservatives complain about in the judiciary' Then when we show it to you , you either deny its happening or say that what their supposed to do without backng it up with anything but rhetoric.
Sorry, but you simply haven't "shown it to us." You have simply pointed out a number of conservative attempts to force their will on everybody, and the judiciary shooting them down.
You show me in the constitution where it gives women the right to abortion, gays the right to marriage or forbids prayer in public schools.
I don't need to, your Supreme Court already did.
Gawain of Orkeny
05-27-2005, 23:46
I don't need to, your Supreme Court already did.
Thanks for proving the point.
We need more judges like this
LINK (http://web.archive.org/web/19970108070805/http://www.courttv.com/library/rights/scalia.html)
And still you ask wheres the judicial actisim, when you give the examples yourself ?
Goofball
05-27-2005, 23:47
Your link doesn't work.
Gawain of Orkeny
05-27-2005, 23:51
Yes it does. Give up your cause is hopeless. You havent made one point stick yet and resorted to eactly what I said you would from the start. Citing instances of legistalive activism ,which is what the founding fathers intended and the constitution permits and then showing how activists judges have overturned these things with no basis to be found in the constitution.
Goofball
05-28-2005, 00:09
Yes it does. Give up your cause is hopeless. You havent made one point stick yet and resorted to eactly what I said you would from the start. Citing instances of legistalive activism ,which is what the founding fathers intended and the constitution permits and then showing how activists judges have overturned these things with no basis to be found in the constitution.
Hmmm. You must be right, because you say so. All of your years of experience as a jurist qualify you to determine that the Supreme Court has made its decisions with no Constitutional basis.
Riiiiggggghhhhht....
~;)
I was asking if the Indian case would qualify as neocon by your definition.
I thought I responded directly to your question
No, this doesn't qualify nor is it judicial activism.
It doesn't qualify as NeoCon by the commonly accepted definition, which is also my definition.
Does this mean you reject the majoritarian process?
When it is used to oppress the minority. I would have, I hope, opped slavery despite the popular support, and I would have support sufferage, even tho the majority of voters opposed it.
Little is that simple. The entire foundation of the USA is built on that complication, that democracy is important but with checks on it. This isn't something that I just made up.
Rights are political acts they exist only insofar as they have been given legal standing and not before.
Well there is a school of thought that accepts that premise, but I, and the founding fathers, reject it.
Declaration of Independence We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
Rights are not bestowed by law or government, they can be protected by them but are inalienable. Priviledge is given by governments.
The Court declared abortion legal. It is therefore determining what law is.
The Courts determined that laws restricting abortion were unconstitutional, this is a judicial prerogative.
Legislative action and Judicial action are distinct. They are separate Branches and operate independently of each other. An Amendment proposal does not go through the Judiciary it is confined to the Legislature (both Federal and State). The Amendment process is not an example of judicial activism nor is it an example of 'stacking the bench' (which refers to adding more Justices to the Court than normally appointed).
There is little need for you to point out to me that legislative and judicial actions are distinct. As I clearly stated before, the Amendment process is an attempt to revise the Constitution because the activism legislation the NeoCons push can't pass judicial muster. In addition to using majority power to push oppressive and unconstitutional measures, the right is also attempting to stack the bench. I'm not going to argue this aspect anymore, as I responded 3 times now, and it seems to be in vain.
You add a bow after hurling sarcasm and invective?
Sorry mate, when every little thing is subject to shredding, as many ideas in here are, its hard to stand there and take hits without hitting back. Sometimes you can be pretty sarcastic and are so condescending (for example)
I want to understand your view because it seems so different from any normal discussion I have seen on Judicial activism. It seems historically and conceptually flawed, but I want to understand why you think as you do.
and others have actually gotten personal with me. I am sincere about my beliefs, and do try ever so hard to be a polite little boy.
So I regret anything I've posted that you consider sarcasm or invective, and want you to know that my bow is sincere. It's hard to write that since you have called into question my honor, but let's just leave it with a request that you stop mingling issues of discussion with issues concerning me. Feel free to pm me.
ichi :bow:
thanks Goofball it's nice to know that some of this makes sense to another person ~:)
Kanamori
05-28-2005, 00:42
"Just because they were nominated by a republican president doesnt make them conservatives. You go by their rulings not who appionted them. They are clearly if not liberal then, they are certainly not strict constitutionalists."
The Rehnquist Court has had a legacy of conservative decisions, regarding economics. O'connor and Kennedy are, typically, the swing votes in the social rulings.
Not that Ichi And I detected no "hurling of sarcasm and invective."
I see. Maybe I misread.
At any rate, his position makes perfect sense to me. It is not liberals who are trying to change the meaning/intent of the Constitution. It is actually a case of radical right wingers trying to change/twist the Constitution in order to impose their morality on the population as a whole. All the judiciary is doing is defending the intent of your founding fathers against these attacks on the spirit of freedom and equality.
This is interesting. Lets take the two cases I cited: what is your explanation for the Mass. Supreme Court ruling on gay marriage? Is this an example of right wingers twisting the Constitution? If so, how is it that in over two hundred years this right was undiscovered? It would seem to me that the more coherent position is to argue that it is a new right that reflects the changing values of the nation.
The Supreme Court ruling on abortion: is this an example of right wingers imposing on the Constitution? Similar to the above, abortion didn't exist as a right until 1973. Again, arguing this was a sacrosanct right from the Republic's inception seems problematic.
Now, arguing that the religious right or other groups are involved in the political process and have an agenda I think is completely true. Arguing that this agenda has a social component is also correct as it involves law. This applies to a host of politically active groups across the spectrum of ideas. The flaw is in saying the right's (or domestic neocons as it were) position necessarily involves a changing of the Constitution's meaning. Either of the two examples mentioned would find the right assuming the traditional understanding of the Constitution's stated rights.
Kanamori
05-28-2005, 01:02
"The Supreme Court ruling on abortion: is this an example of right wingers imposing on the Constitution? Similar to the above, abortion didn't exist as a right until 1973. Again, arguing this was a sacrosanct right from the Republic's inception seems problematic."
Be that as it may, abortion laws were also quite rare prior to the 1900's; it was a nonissue. Consequently, it was most likely overlooked, on the whole, by the intent of the founding fathers. To me, saying the right didn't exist -- implying that the orignal constitution, after the first ten amendments, didn't acknowledge it -- and saying the right is protected under the constitution, as it was intended long ago, are both moot points to argue.
Edit: Nevermind, you addressed this.
When it is used to oppress the minority. I would have, I hope, opped slavery despite the popular support, and I would have support sufferage, even tho the majority of voters opposed it.
I'm sure you would have supported all you say. The difficulty is in assuming that support equals legal mandate. Abolition and suffrage movements had no legal force until they had gone through the Amendment process specifically the 13th and 19th Amendments. The Amendment process is majoritarian. Thus, while minorities are given certain protections, what minorities and the parameters of those protections, remains subject to the popular will.
Well there is a school of thought that accepts that premise, but I, and the founding fathers, reject it.
Rights are not bestowed by law or government, they can be protected by them but are inalienable.
So you believe in natural law. Natural law is bound up in a theological perspective. Natural law and its attendant rights are what they are because they reflect the Divine will which supersedes the edicts of men. That is what gives them their force. Just focusing on gay marriage: where is the natural law that gives this sanction?
Another difficulty with this view is historical. The Founding Fathers felt obliged to codify rights in Amendments. If someone claimed he had a right to marry his seven year old daughter that claim would remain without legal force regardless the passion of the claimant.
The Courts determined that laws restricting abortion were unconstitutional, this is a judicial prerogative.
What is the basis of this prerogative?
. . . the parameters of those protections, remains subject to the popular will.
and the protections inherent in a government where the Legislative, Judicial, and Executive branches are designed to ensure that the popular will doesn't trample the rights of the minority. We are a democratic Republic, not a pure democracy.
So you believe in natural law. I believe that humans rights are not conferred upon by any government, but that a proper government protects those rights. There's no theology attached to it.
Since I don't want the government telling me who I can or cannot love and devote my life to, and since it would be unfair to provide the benefits of marriage to one because they married a person of one sex, but deny it to another because that person loved someone of the 'wrong' sex, and since I believe in the Golden Rule (not because of Jesus, but because it is fair, and fairness is both pragmatically and dogmatically good), I oppose these Marriage Amendments.
Because of the Equal Protection Clause I think they are unconstitutional. It has nothing to do with natural law or theology, at least for me.
The Founding Fathers felt obliged to codify rights in Amendments.
Yes, but due to the committee nature of the development they agreed to cut some stuff out, not because they did not wish to confer it but for other reasons. This enumerations argument is flawed - just look at the 9th, it specifically reserves those rights not enumerated. Its hard for me to see how the idea that only those enumerated rights are valid can be argued. Ipso locutor.
If someone claimed he had a right to marry his seven year old daughter Yes, there are competing interests. In this case it is the rights of the 7 yr old that outweigh any assertion by pedophile dad.
According to your framework, in a society where it was legal for dad to marry his 7 yr old then he would have a right to do so. I prefer my framework.
What is the basis of this prerogative?
I think it comes from Article III of the Constitution
The Constitution Article III.
Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
ichi :bow:
I guess that's where we differ then. I believe that they are upholding the intent of the Constitution. You say they are not, and apparently for no other reason other than you don't like their rulings.
And you say they are for no other reason than you like the rulings?
The Amendment process is majoritarian. Thus, while minorities are given certain protections, what minorities and the parameters of those protections, remains subject to the popular will.
and the protections inherent in a government where the Legislative, Judicial, and Executive branches are designed to ensure that the popular will doesn't trample the rights of the minority. We are a democratic Republic, not a pure democracy.
This doesn't respond to my comment. Division of government and Republic status do not change the basic majoritarian element that determines rights and how they are afforded.
I believe that humans rights are not conferred upon by any government....
Where do these derive from? What is the source of their force? Why should this be a compelling interest?
Since I don't want the government telling me who I can or cannot love and devote my life to, and since it would be unfair to provide the benefits of marriage to one because they married a person of one sex, but deny it to another because that person loved someone of the 'wrong' sex, and since I believe in the Golden Rule (not because of Jesus, but because it is fair, and fairness is both pragmatically and dogmatically good), I oppose these Marriage Amendments.
I hope you feel the same for incestuous, polygamous and inter-species marriages as well: arbitrary rejections based on the 'wrong' family or 'wrong' number or the 'wrong' species would seem to demand fairness. Now I doubt you feel so inclined, but that is a natural result of your line of reasoning.
Because of the Equal Protection Clause I think they are unconstitutional.
The 14th Amendment's Equal Protection Clause has gone through a host of interpretative permutations. Originally as seen in the 1869 Slaughter House cases it was interpreted to only apply to discrimination of Blacks. The difficulty here is that law by its very nature contains classifications and those classifications will treat people differently or the same based on what the legislature deems relevant. For example, a 17 year old murderer will receive different sentencing than a 18 year old. Or, as one goes State to State the laws governing marriage differ both in regards to acceptable age and other factors. If you take that determination out of the hands of the legislature then you are ipso facto appealing to a non-elected body and thus placing governance outside of popular sovereignty.
Yes, but due to the committee nature of the development they agreed to cut some stuff out, not because they did not wish to confer it but for other reasons. This enumerations argument is flawed - just look at the 9th, it specifically reserves those rights not enumerated. Its hard for me to see how the idea that only those enumerated rights are valid can be argued. Ipso locutor.
The 9th Amendment does not support your case. Note: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Where does the power reside? with the people, not Judges. This is typically taken to mean that the people have reserved the power to expand on the enumerated rights. The method of this enumeration is provided in the Constitution. Regardless, the point remains there is a list of Amendments. This list is itself exclusive by its very existence. To argue there is a host of non-codified rights is to create a social and legal bog. Where are these rights? What are there parameters? Why do they have force or should they? How are they enforced? Who decides competing claims? etc. etc. A Constitutional system cannot and does not operate along those lines. Note the pedophile example: your reply claimed there were competing interests (this suggests, I assume, the girl would be opposed, which was not indicated) and that the 'girl's rights' outweigh, why? There is no standard for measuring any of these components. Instead, there is an arbitrary reaction based on your belief pedophilia is 'wrong'. Under your standard, the pedophile should have as equal footing as the gay for claiming a right ipso locutor.
According to your framework, in a society where it was legal for dad to marry his 7 yr old then he would have a right to do so. I prefer my framework.
My framework is that law should reflect the will of the people both in regard to State, Federal and Constitutional formats, any other standard is undemocratic.
I think it comes from Article III of the Constitution
There is nothing in Article III that empowers Judges to void law.
Division of government and Republic status do not change the basic majoritarian element that determines rights and how they are afforded.
Are you saying that human rights are based on the will of a majority? In the US there is a system that does change the basic majoritarian element, designed to protect minority rights from abuses by majority whim.
What is the source of their force?
Asked and answered. Dogmatically, I expect rights, so in fairness I must support the same rights for others. Pragmatically, if I don't support their claims I undermine my own.
I
hope you feel the same for incestuous, polygamous and inter-species marriages as well: arbitrary rejections based on the 'wrong' family or 'wrong' number or the 'wrong' species would seem to demand fairness. Now I doubt you feel so inclined, but that is a natural result of your line of reasoning.
Nothing arbitrary about it, based on fact and science and reason. Government has no compelling interest in prohibiting polygamy, altho it does have role in protecting the women and children and ensuring dad doesn't rely on the State to support him. Bestiality is cruelty to animals, which the State does have an interest in prohibiting.
If you take that determination out of the hands of the legislature then you are ipso facto appealing to a non-elected body and thus placing governance outside of popular sovereignty.
Are you making the assertion that no court can review he constitutionality of a law and block enforcement or implementation of unconstitutional laws? Becasue if you are, you're ignoring a load of American precedent.
My framework is that law should reflect the will of the people both in regard to State, Federal and Constitutional formats, any other standard is undemocratic.
So I ask again, if the will of the people is that dad can have sex with little suzie then do you think that law is OK?
There is nothing in Article III that empowers Judges to void law.
We disagree, and again it appears that history agrees with me. I say its Article III,
Section 2, Article III The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
ichi :bow:
ps much rehashing going on here, getting bored
ps much rehashing going on here, getting bored
I haven't been particularly concerned about how bored a poster is before. I have been and am concerned with the coherency and base justification of ideas put forward. The jurisprudential ideas I hold to have place because I believe they maintain a base cogency. My loyalty to them only extends to the degree they maintain that status. I am happy to test those ideas against competing claims and change my views based on the more rational position. Maybe you feel bored because you think that if you speak to some issue that should resolve the matter, from my perspective, that is rarely the case.
This is how I see things at the moment: you have had several fairly emotional posts starting with your first post #32. I took that to mean this was an important subject to you. I questioned you initially about two points: your use of neocon and conservative judicial activism. Your use of neocon is not standard, but I understand the position. Your charge of judicial conservative activism I tried to understand by referencing two common case studies: abortion and gay marriage. Neither seemed to support your view given the 'right' was the position defending the standard against change. This included a brief discussion of the Amendment process which occurs outside of the judicial arena and so doesn't support the original charge. Now from this point the discussion shifted some (as discussions tend to do) to the role of majorities in deciding law (rights) and the Courts' ability to void law. Your view seems to be that majorities are curtailed by inalienable rights, but that these rights are not based on the natural law tradition, but reciprocity. You also seem to believe Court's do have the right to determine law irrespective of any extra-Constitutional, anti-democratic principle that may involve. Both of these points still need to be addressed. I'll answer a couple of your questions and then deal with both points.
Are you saying that human rights are based on the will of a majority? In the US there is a system that does change the basic majoritarian element, designed to protect minority rights from abuses by majority whim.
I am saying that any rights contained in the Constitution went through a process of ratification. That process is majoritarian. This includes all protections afforded minorities. Rights claims outside of that structure have no legal force.
Are you making the assertion that no court can review he constitutionality of a law and block enforcement or implementation of unconstitutional laws? Becasue if you are, you're ignoring a load of American precedent.
Yes. The Court has assumed this power, it is not an enumerated authority mentioned in the Constitution. You referenced Article III: but no where does it say the Court can void law. Now I know you believe this power falls under Section 2, but that is not explicitly stated nor was it how it was initially understood. The original understanding was that Courts can interpret a law ( law X applies to case Y and Z) but it was not until the 19th Century Marshal Court that actually determining law was assumed as a Judicial power.
Now I want you to consider two issues related to the above. The first is the base undemocratic nature to this power. The Court is not chosen by the people nor answerable to the people. Does this fit into the basic principles: 'no taxation without representation' etc. that moved the Colonies to form a nation? Does it make sense that many of the basic principles the nation governs itself by should be determined without popular consent? Consider abortion: this has become a massively polarizing issue because of the Court's ruling. Both sides in the issue appeal to some basic principles of the nation: right to life, right to liberty. Shouldn't this be decided by the very people whose lives are effected by it?
The second point I'd like you to consider is: the three branches of government are supposed to operate along checks and balances. Where is the balance to this Court power? Neither the Executive nor the Legislative branches have any enumerated check to this power. The reason being it was not an original power of the Court. The only real possibility might be creating a new Amendment to curb some ruling, but the Amendment process is very long and difficult and therefore not a very practical check. The result is one has a tyranny of the minority.
So I ask again, if the will of the people is that dad can have sex with little suzie then do you think that law is OK?
Something being OK and legal are not the same. Legality is determined by law and law must reflect popular will to maintain legitimacy. Moral questions are separate. Hopefully one uses moral judgment when making decisions about law, but a moral assertion alone does not make the law. Slavery as a real example, pedophilia as a hypothetical would reflect this standard. Now if one wishes to change an 'immoral' law hopefully they work within the system to see that come about, meaning: they get enough like minded people to agree with them and pass legislation. Now if the Court is given power to decide outside of that framework: say the Court rules law X entails daddy's right to marry Suzie then popular consent is not a factor and the above mentioned ideas of tyranny apply.
Now I want to address your notion of inalienable rights. Inalienable rights comes from the natural law tradition. You have rejected this in place of a reciprocity schema: I expect rights so must give them in return. This speaks to form, but not content. The form could be taken at least two different ways: I demand right X so I must recognize the others claim to right Y. This suggests you both get what you want. The content of such a model could be: I demand the right to free speech and I grant you the right to marry your sister. This doesn't explain what one does when there are competing rights claims or the moral soundness of any claim. Another possible form is: I claim right X and will grant you that same right to X. The content of this model might be: I claim life begins at birth and so abortions are acceptable up to actual birth and I grant you the same position. This view is also limited by not addressing contrary views: one is willing to grant right X to themselves and others, but another actually claims right Y under that same model. How is this decided? If compromise is a possibility: you grant me X and I recognize Y the rights are actually subject to a political dynamic and not necessarily inalienable. There is also the issue of opposite rights claims: I claim X but another claims -X. This would seem to be not only a practical impasse, but a theoretical conundrum as well.
I think I spoke to Court powers above so I'll leave it at that for the moment.
Kanamori
05-29-2005, 01:29
"Does it make sense that many of the basic principles the nation governs itself by should be determined without popular consent?"
In the most extreme cases, the ideas of rights in the Constitution are only made more specific. E.g., the "right to privacy", although not specifically mentioned, is derived, in a reasonable way, from the banning of "unreasonable search and seizures". A right to privacy is inherent in needing a warrant to search and seize evidence of a crime. To say it is the court's duty to strike down laws that violate the right to privacy, though, is not mentioned anywhere in the Constitution. In fact, it was pretty much overlooked -- contrary to my position in the past on this matter. Whose job is it to strike down unconstitutional laws? Should they not be made in the first place? Isn't assuming such giving the Congress a way to change the Constitution without passing an amendment (Senators were not popularly elected then, too), by allowing them to claim constitutionality by passing something in the first place?
"I am saying that any rights contained in the Constitution went through a process of ratification. That process is majoritarian. This includes all protections afforded minorities. Rights claims outside of that structure have no legal force."
In the ninth amendment, they tried to address this, but they failed, because they said "some rights are not mentioned but are present", for fear of leaving some out that they wished for, but they didn't say which ones, and they gave no way to enforce, or create, a model on how to judge such percieved rights...so, it is entirely debatable which rights fit inside of that structure, if the tradition of Marbury v. Madison is thrown out.
Now, if Marbury v. Madison is thrown out, chaos ensues, unless Congress can act quickly and unilaterally to create some structure to replace what the Judiciary assumed. We can pretty safely say that our Congress would be slow in coming to any concise conclusion. I feel that this case is also monumental, in that it put the US law system in a very defined direction that was different than the English system, by creating the idea of absoluteness: if a law is not constitutional -- and it assumes who is to determine such, not leave the decision to the flow of politics -- it ought to be struck down.
"Are you making the assertion that no court can review he constitutionality of a law and block enforcement or implementation of unconstitutional laws? Becasue if you are, you're ignoring a load of American precedent."
Marshall assumed the power of Judicial Review, in a sort of "begging the question" fallacy, when he asserted that it was the Supreme Court's place to strike down unconstitutional laws, based on the ability to question constitutionality (note that this is disparate from the case at the top of my post, when constitutionality of methods are factored into verdicts of guilt), which he derived from the Constitution. It is quite reminiscent to Descartes' "proof" of God, in that the proof of something is dependant on the nature of that thing.
Your charge of judicial conservative activism
I've never charged conservative judicial activism. I charged that the ruse of liberal judicial activism was simply a ploy to cover up the fact that so-called conservatives want judicial activists from their side, and are waging a war on three fronts - a media campaign to smear judges that do not support a conservative agenda, stacking the bench, and legislative activism.
The Court is not chosen by the people nor answerable to the people. Does this fit into the basic principles: 'no taxation without representation' etc. that moved the Colonies to form a nation?
Many courts are elected and answerable, but let us address the nature of those that are insulated from direct majority pressure by one layer. These judges are selected by elected officials, but the reason they are one-step-removed from direct contact with the electorate is precisely to check the mob effect. So no it doesn't fit into the 'no taxation without representation' situation.
Consider abortion: this has become a massively polarizing issue because of the Court's ruling.
I was around before Roe v Wade, and abortion was problematic prior to the ruling. Abortion is polarizing, and while the ruling has become an issue with those opposed to abortion, abortion isn't a massivaly polarizing issue because of the ruling.
Shouldn't this be decided by the very people whose lives are effected by it?
That's what I've been saying all along, the mother and her doctor should have all of the say, the church and state can sit it out.
The second point I'd like you to consider is: the three branches of government are supposed to operate along checks and balances. Where is the balance to this Court power? Neither the Executive nor the Legislative branches have any enumerated check to this power. The reason being it was not an original power of the Court.
The balance to court power is that only the Legislature can pass laws. Lets compare situations
1) Legislature passes laws, and courts can review them when asked to do so and can find those laws unconstitutional. The courts are vetted by the Legislature.
2) Legislature passes laws, but no judicial review can occur.
Option 1 seems to have a minor risk of being imbalanced by judicial activism, which then could be thwarted thru the vetting process.
Option 2 seems totally unbalanced, and would allow for oppression of teh minority whenever the majority had a whim to do so.
The result is one has a tyranny of the minority.
If protection of minority rights is tyranny, then I guess you're right, but democracy has to be more than two wolves and a sheep deciding what's for dinner. If the sheep gets to prevent the selection of lambchops, the wolves might sense tyranny. I don't see it.
Legality is determined by law and law must reflect popular will to maintain legitimacy.
I disagree, the law should reflect popular will to the extent that it can while maintaining essential fairness and reasonableness.
Simple majority rule without checks to ensure fair treatment of minority views has some real problems, which I think have been pointed out in this thread and elsewhere.
say the Court rules law X entails daddy's right to marry Suzie then popular consent is not a factor and the above mentioned ideas of tyranny apply.
that would be judicial activism of the worst kind, and would probably never last more than a few minutes before The Congress fixed the mistake. If The Congress failed to act, then I'm sure the Executive would step in and of course, the People can always rise up and overthrow an inherently corrupt (or misguided) system.
See, the system works, even when confroned with the most outrageous situations.
The content of such a model could be: I demand the right to free speech and I grant you the right to marry your sister.
The model is that I expect a right to free speech so therefore I think you should also have the right to free speech.
This view is also limited by not addressing contrary views: one is willing to grant right X to themselves and others, but another actually claims right Y under that same model. How is this decided? If compromise is a possibility: you grant me X and I recognize Y the rights are actually subject to a political dynamic and not necessarily inalienable. There is also the issue of opposite rights claims: I claim X but another claims -X. This would seem to be not only a practical impasse, but a theoretical conundrum as well.
In the absence of social structure it would be a mess, everyone running around claiming this and that. So we have a Legislature that passes laws to codify the solution to this 'practical impasse', and a judicial system that decides application of that code on a case-by-case basis. It seems that where we differ is in regards to judicial review of the code itself.
I haven't been particularly concerned about how bored a poster is before. I have been and am concerned with the coherency and base justification of ideas put forward.
How nice. After a little reflection I have come to realize that I am not particularly concerned about how coherent you think I am.
Maybe you feel bored because you think that if you speak to some issue that should resolve the matter, from my perspective, that is rarely the case.
I feel bored because this thread is beginning to get redundant. I do not feel that if I speak to some issue that should resolve the matter, I'm not nearly that arrogant.
you have had several fairly emotional posts
I am guilty of the sin of pride, which in this case means that I don't like to let others try to put me down or treat me rudely. To be honest I'm tired of your arrogance and condescension and these attempts to belittle me.
Since I refuse to trade barbs or to let these unwarranted jabs escalate into something not befitting this wonderful forum, this puts an end to my part of this conversation. I have enjoyed the intellectual discussion, but you insist on getting personal. It is unpleasant and not why I come here.
ichi :bow:
"Does it make sense that many of the basic principles the nation governs itself by should be determined without popular consent?"
In the most extreme cases, the ideas of rights in the Constitution are only made more specific. E.g., the "right to privacy", although not specifically mentioned, is derived, in a reasonable way, from the banning of "unreasonable search and seizures".
Interestingly enough this 'right to privacy' didn't exist until 1965 with the Court's Griswold decision. Justice Douglas who delivered the majority opinion did refer to the 4th Amendment, as well as a host of other notions. For example, he wrote: "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system." He explicitly appeals to extra-Constitutional ideas to ground his view. Douglas did this because he was all too aware that no such provision existed in the Constitution. This is a problem when working under a Constitutional framework. Contrast this with Justice Blacks' dissenting opinion: "The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given."
I think taking interpretive liberty with a founding legal text is dangerous, all the more so when done by those who are bound only by their own opinions. Rights should be those so stated. Any additions should reflect popular will.
To say it is the court's duty to strike down laws that violate the right to privacy, though, is not mentioned anywhere in the Constitution. In fact, it was pretty much overlooked -- contrary to my position in the past on this matter. Whose job is it to strike down unconstitutional laws?
You are right the Court is not given any such power. Your question is a good one. Any bad law, whether it be immoral, unconstitutional or simply stupid falls to the people themselves to put pressure on their representatives via lobbyists, political action groups or voting bums out of office so that the legislature and the law reflects the will of the people. Law should reflect the popular will and be amenable to the same.
"I am saying that any rights contained in the Constitution went through a process of ratification. That process is majoritarian. This includes all protections afforded minorities. Rights claims outside of that structure have no legal force."
In the ninth amendment, they tried to address this, but they failed, because they said "some rights are not mentioned but are present", for fear of leaving some out that they wished for, but they didn't say which ones, and they gave no way to enforce, or create, a model on how to judge such perceived rights...so, it is entirely debatable which rights fit inside of that structure, if the tradition of Marbury v. Madison is thrown out.
There is an established Amendment process clearly laid out.
Now, if Marbury v. Madison is thrown out, chaos ensues, unless Congress can act quickly and unilaterally to create some structure to replace what the Judiciary assumed. We can pretty safely say that our Congress would be slow in coming to any concise conclusion. I feel that this case is also monumental, in that it put the US law system in a very defined direction that was different than the English system, by creating the idea of absoluteness: if a law is not constitutional -- and it assumes who is to determine such, not leave the decision to the flow of politics -- it ought to be struck down.
I don't think Judicial Review will disappear. There is too long a case history. If Marbury had never happened I don't think chaos would have ensued and I do think our Judicial system would be far healthier than it is. As far as the present reality is concerned: I think Judicial restraint and allowing self-governance is preferable.
"Are you making the assertion that no court can review he constitutionality of a law and block enforcement or implementation of unconstitutional laws? Becasue if you are, you're ignoring a load of American precedent."
Marshall assumed the power of Judicial Review, in a sort of "begging the question" fallacy...
That is exactly right.
I've never charged conservative judicial activism. I charged that the ruse of liberal judicial activism was simply a ploy to cover up the fact that so-called conservatives want judicial activists from their side, and are waging a war on three fronts - a media campaign to smear judges that do not support a conservative agenda, stacking the bench, and legislative activism.
Staying with our set examples: abortion and gay marriage are hardly ruses. They are real issues with real social/political impact whose beginnings are not from rightist causes.
'Stacking the bench' is a red herring since Parties always choose Jurists who they think will reflect their view and legislation is necessarily an activism.
Many courts are elected and answerable, but let us address the nature of those that are insulated from direct majority pressure by one layer. These judges are selected by elected officials, but the reason they are one-step-removed from direct contact with the electorate is precisely to check the mob effect. So no it doesn't fit into the 'no taxation without representation' situation.
If there is no answerability for a jurist once benched notions of representation evaporate and the mob is the least of your worries.
I was around before Roe v Wade, and abortion was problematic prior to the ruling. Abortion is polarizing, and while the ruling has become an issue with those opposed to abortion, abortion isn't a massivaly polarizing issue because of the ruling.
I disagree with your sense of history.
Abortion is an issue with any who think it is important. Senate confirmations serve as the simplest example.
That's what I've been saying all along, the mother and her doctor should have all of the say, the church and state can sit it out.
I understand you support abortion. The point is advocates who appeal to a base personal liberty and detractors who appeal to a principle of life are both making weighty claims. To simply dismiss one or the other is irresponsible. When competing ideals are in question the only legitimate standard is to appeal to the will of the majority. If the majority's opinion changes the law should as well. This is the essence of democratic systems.
The balance to court power is that only the Legislature can pass laws. Lets compare situations
1) Legislature passes laws, and courts can review them when asked to do so and can find those laws unconstitutional. The courts are vetted by the Legislature.
2) Legislature passes laws, but no judicial review can occur.
Option 1 seems to have a minor risk of being imbalanced by judicial activism, which then could be thwarted thru the vetting process.
Option 2 seems totally unbalanced, and would allow for oppression of teh minority whenever the majority had a whim to do so.
You are confused. Legislatures passing law is not a balance to Judicial Review. Judicial Review means the Court can summarily void the law. The legislature has no appeal to this. Further Judicial Review has meant Courts can order areas to enact certain standards or practices which is an assumption of legislative power. Again, there is no check to this. Further the Court gets literally thousands of case submissions per term, they have discretion to choose which if any they wish to rule on. Then there is certiorari authority where they can call up a case to rule on without any appeal.
Regarding 1) Legislatures do not vet courts. They do vet jurists when they are nominated to senior benches. This is a one time affair and offers no follow up control. A jurist can easily occupy a senior court appointment for over twenty years with no oversight (twenty years is not an unusual length of time).
Regarding 2) The Republic was not unbalanced in its early years without Judicial Review. Your statement is based on a false assumption: there is no guarantee that the Court is automatically going to protect the rights of the minority. Two simple examples: the 1856 Dred Scott case and 1896 Plessy v. Ferguson case both furthered the oppression of minorities. In a democratic system, minorities are always vulnerable to majorities by definition. Constitutional provision helps to alleviate this to a certain extent, but the base system remains democratic and therefore majoritarian. This means in an ultimate sense that vulnerability can never be totally removed. Unfortunately, some Judicial Review advocates in a confused attempt to further garner minorities end up supporting a system that is an implicit tyranny of the minority. Historically minority tyranny has a far worse track record.
If protection of minority rights is tyranny, then I guess you're right, but democracy has to be more
Tyranny includes an unjust power over others without a control. This is why the checks and balances system was set up. Judicial Review is not part of that system. There is no balancing mechanism. This is dangerous.
I disagree, the law should reflect popular will to the extent that it can while maintaining essential fairness and reasonableness.
How does one determine fairness and reasonableness? Does donning a black robe mean one gains special insight into this? Does sitting on a throne give special insight? Giving in to anti-democratic impulses does not necessarily mean justice will be the end result. Fear of the coarseness of the mob has been the refrain of tyrants from the Classical Period forward.
Simple majority rule without checks to ensure fair treatment of minority views has some real problems, which I think have been pointed out in this thread and elsewhere.
That is why the U.S. adopted a Constitution.
say the Court rules law X entails daddy's right to marry Suzie then popular consent is not a factor and the above mentioned ideas of tyranny apply.
that would be judicial activism of the worst kind, and would probably never last more than a few minutes before The Congress fixed the mistake. If The Congress failed to act, then I'm sure the Executive would step in and of course, the People can always rise up and overthrow an inherently corrupt (or misguided) system.
See, the system works, even when confroned with the most outrageous situations.
Unfortunately we have no examples of Congress 'fixing' any Judicial mistakes nor do we have a method for them to do so. The same applies for the Executive. This leaves your rebellion option. Rebellions are not examples of a system working.
The model is that I expect a right to free speech so therefore I think you should also have the right to free speech.
OK, then you follow the "I claim right X and will grant you that same right to X." model. Then what I wore earlier would apply: " I might claim life begins at birth, anything before that is not a person and so abortions are acceptable up to actual birth and I grant you the same position." or it might be "I claim Jews are subhuman and therefore I have the right to eliminate them and I grant you that same right." Reciprocity is no guarantee of justice.
This view is also limited by not addressing contrary views: one is willing to grant right X to themselves and others, but another actually claims right Y under that same model. How is this decided? If compromise is a possibility: you grant me X and I recognize Y the rights are actually subject to a political dynamic and not necessarily inalienable. There is also the issue of opposite rights claims: I claim X but another claims -X. This would seem to be not only a practical impasse, but a theoretical conundrum as well.
In the absence of social structure it would be a mess, everyone running around claiming this and that. So we have a Legislature that passes laws to codify the solution to this 'practical impasse', and a judicial system that decides application of that code on a case-by-case basis. It seems that where we differ is in regards to judicial review of the code itself.
Ahhh, but you claimed 'inalienable rights' recall, such are not bound by legislatures and courts. Your inalienable rights model breaks down due to its subjective bent. If you try to rectify this with legislative or judicial action then your rights are no longer inalienable. You are stuck.
I am guilty of the sin of pride
I'm sorry your were offended. :bow:
vBulletin® v3.7.1, Copyright ©2000-2024, Jelsoft Enterprises Ltd.