Where exactly is this "leftist bias" conservatives complain about in the judiciary?

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.

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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.

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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.

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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.

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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.

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Originally Posted by Gawain of Orkeny

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.

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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.

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Originally Posted by Gawain of Orkeny

Of course because you like him dont understand what your talking about.

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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.

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Originally Posted by Gawain of Orkeny

Neither of you can give 1 example of conservative judicial activism. Thats because there isnt any at the moment.

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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.

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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.

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No I dont like it because theres nothing in the constitution to support their rulings and I challenge you to show me it.

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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.

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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?

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Originally Posted by Gawain of Orkeny

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?

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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.

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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.

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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.

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Originally Posted by Gawain of Orkeny

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.

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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.

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Again I ask: exactly what is being forced on conservatives?

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Whats being forced on liberals? Whats being forced is the overturning of the will of the people and not just conservatives.

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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.

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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?

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Are Christians being forced to give up their religion?

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No but their ability to advance and proclaim it has been under attack. Exactly what the 1st amendment was meant to prevent.

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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.

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So now all christains are conservative and we all want creationism taught in school. LOL.

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No, but conservatives are doing everything they can to stop homosexuals from marrying the person they love.

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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

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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.

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LINK

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Originally Posted by Gawain of Orkeny

So now all christains are conservative and we all want creationism taught in school. LOL.

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Nice try. I didn't use the word "all" as a modifier for the word conservatives or "Christians" anywhere in my post.

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Originally Posted by Gawain of Orkeny

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.

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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.

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Originally Posted by Gawain of Orkeny

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.

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I don't need to, your Supreme Court already did.

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I don't need to, your Supreme Court already did.

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Thanks for proving the point.

We need more judges like this

LINK

And still you ask wheres the judicial actisim, when you give the examples yourself ?

Your link doesn't work.

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.

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Originally Posted by Gawain of Orkeny

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.

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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....

~;)

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I was asking if the Indian case would qualify as neocon by your definition.

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I thought I responded directly to your question

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Originally Posted by ichi

No, this doesn't qualify nor is it judicial activism.

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It doesn't qualify as NeoCon by the commonly accepted definition, which is also my definition.

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Does this mean you reject the majoritarian process?

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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.

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Rights are political acts they exist only insofar as they have been given legal standing and not before.

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Well there is a school of thought that accepts that premise, but I, and the founding fathers, reject it.

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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,

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Rights are not bestowed by law or government, they can be protected by them but are inalienable. Priviledge is given by governments.

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The Court declared abortion legal. It is therefore determining what law is.

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The Courts determined that laws restricting abortion were unconstitutional, this is a judicial prerogative.

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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).

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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.

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You add a bow after hurling sarcasm and invective?

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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)

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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.

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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 ~:)

"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.

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Originally Posted by Goofball

Not that Ichi And I detected no "hurling of sarcasm and invective."

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I see. Maybe I misread.

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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.

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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.

"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.

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Originally Posted by ichi

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.

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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.

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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.

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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.

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The Courts determined that laws restricting abortion were unconstitutional, this is a judicial prerogative.

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What is the basis of this prerogative?

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. . . the parameters of those protections, remains subject to the popular will.

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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.

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So you believe in natural law.

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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.

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The Founding Fathers felt obliged to codify rights in Amendments.

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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.

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If someone claimed he had a right to marry his seven year old daughter

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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.

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What is the basis of this prerogative?

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I think it comes from Article III of the Constitution

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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;

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ichi :bow:

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Originally Posted by Goofball

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.

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And you say they are for no other reason than you like the rulings?

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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.

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Originally Posted by ichi

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.

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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.

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I believe that humans rights are not conferred upon by any government....

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Where do these derive from? What is the source of their force? Why should this be a compelling interest?

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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.

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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.

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Because of the Equal Protection Clause I think they are unconstitutional.

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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.

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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.

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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.

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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.

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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.

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I think it comes from Article III of the Constitution

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There is nothing in Article III that empowers Judges to void law.

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Division of government and Republic status do not change the basic majoritarian element that determines rights and how they are afforded.

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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.

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What is the source of their force?

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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

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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.

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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.

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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.

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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.

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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.

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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?

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There is nothing in Article III that empowers Judges to void law.

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We disagree, and again it appears that history agrees with me. I say its Article III,

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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;

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ichi :bow:

ps much rehashing going on here, getting bored

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Originally Posted by ichi

ps much rehashing going on here, getting bored

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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.

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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.

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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.

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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.

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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.

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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?

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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.

"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.

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Your charge of judicial conservative activism

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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.

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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?

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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.

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Consider abortion: this has become a massively polarizing issue because of the Court's ruling.

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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.

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Shouldn't this be decided by the very people whose lives are effected by it?

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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.

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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.

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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.

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The result is one has a tyranny of the minority.

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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.

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Legality is determined by law and law must reflect popular will to maintain legitimacy.

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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.

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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.

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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.

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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.

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The model is that I expect a right to free speech so therefore I think you should also have the right to free speech.

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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.

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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.

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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.

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How nice. After a little reflection I have come to realize that I am not particularly concerned about how coherent you think I am.

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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.

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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.

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you have had several fairly emotional posts

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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:

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Originally Posted by Kanamori

"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".

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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.

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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?

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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.

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"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.

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There is an established Amendment process clearly laid out.

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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.

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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.

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"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...

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That is exactly right.

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Originally Posted by ichi

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.

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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.

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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.

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If there is no answerability for a jurist once benched notions of representation evaporate and the mob is the least of your worries.

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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.

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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.

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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.

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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.

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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.

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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.

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If protection of minority rights is tyranny, then I guess you're right, but democracy has to be more

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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.

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I disagree, the law should reflect popular will to the extent that it can while maintaining essential fairness and reasonableness.

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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.

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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.

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That is why the U.S. adopted a Constitution.

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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.

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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.

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The model is that I expect a right to free speech so therefore I think you should also have the right to free speech.

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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.

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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.

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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.

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I am guilty of the sin of pride

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I'm sorry your were offended. :bow: