Note to the interested:
http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford sheds some light on the politically motivated lies in the Dred Scott case. With a little research you can find some commentaries about the (I suspect politically motivated) untruths about law in Roe v. Wade as well.
You all are going to have to slow down.
I am answering aporia and uccisor at the same time.
I am only one person.
Kropotkin
no you are peter and kropotkin two people sharing the same body lol.
Uccisore"A lot of words, and no answer to my question. I have no choice but to ask it again. What kind of decisions have conservative, activist judges made that qualifies you to say that they are in the majority of activist judges?
K: 1994 in a concurring opinion, that have radically altered the
idea of the civil rights voting acts. (holder v hall 94) which would
have diminished protection provided by the voting right act of 1965.
It would have (had it been in the majority) overturn 30 years of supreme
court precedence and at least 3 congressional reauthorizations
of the act. The thomas/scalia opinion in holder would have nullified
section 2 and 5 of the act which specifically created to end racial gerrymandering and other practices that deny voting rights to
minorities. The thomas/scalia position ignores the legislative history
that shows congress intended the voting rights act to be
interpreted broadly as a powerful tool to root out discriminatory
election practices. Justices stevens, blackman, souter, and ginsburg
critized the thomas/scalia opinion, calling their position,
“radical” and estimating that it would have required the overturning
or reconsideration of at least 28 previous supreme court decisions.
The thomas/scalia opinion had it been a majority would have
radically changed the voting rights act. By doing so, that
would have been an activist position. Changing precedence
and legislative action to accommodate ideology.
That is exactly the activist judge the right wing protest.
Kropotkin
K: it requires a understanding about what judges actually rule on.
The key thing that judges rule on is precedence."
A: Incorrect. Why don’t you learn something about what you’re talking about before you tell people you’re going to educate them.
K: If you reread my post I very clearly point out that the supreme
court uses both precedence and the constitution.
I said judges use precedence because the cases they have before
them are not about the constitution. The vast majority of judges are
not supreme court judges.
A: The Supreme Court is supposed to make decisions based on the text and intent of the constitution. Its job is to interpret the constitution according to its original intent as evidenced by the text itself and our country’s legal tradition. If it fails to do so it becomes another legislative body and the checks and balances of the system are thrown out of whack. The Supreme Court screwed up in Roe v. Wade. There is nothing in the constitution or this country’s legal tradition suggesting that abortion is a protected, fundamental right (which I know from studying the case and commentaries on it from both sides). When a future court recognizes this and returns the court to sound constitutional reasoning, Roe v. Wade will be overturned. Nobody ever said that a wrongly decided case must never be overturned because it’s a “precedent”. If that were the case then exonerated death-row convicts would be executed anyway.
K: What is the “original” intent of the constitution about abortion,
or capital punishment or assisted suicide. You don’t know.
But judges and lawyers who actually know the law and studied the
law can read the constitution and understand the constitution is
about giving freedoms and not taking them away. Read the constitution
and see that is it about what freedoms you have, it is not about
what freedoms you don’t have. Show me exactly (in the face
of 30 years of supreme court review by judges who actually
have studied the law) how they screwed up. Sound constitutional
reasoning is what the supreme court says it is. (oh, by the way
dred scot case was 1857, you would think you could come up
with something perhaps a little more recent because by common
consent that case is the single worst decision in the history
of the supreme court)
K: A judge rarely ever makes a judgment that has not been judge
before in some fashion or another."
A: True, but they need to apply their own reasoning CORRECTLY to the differences in each specific case to ascertain whether the conclusion from the precedent applies. In the case of Roe v. Wade there was no precedent, abortion law was decided democratically rather than by judicial fiat.
K: “Your whole statement depends on the word “correctly”
And by your logic, the judges in “brown v board of education”
should have never even taken the case, and by god should
never had interfered with the local laws about schooling, which
were decided democratically. Under your theory,
the supreme court really has nothing to do, because everything
must be decided democratically, or within the very narrow bounds
of exactly what is in the constitution.”
K: “Now of course the constitution says nothing about abortion or gay rights, or dozens of other hot button cases before the courts, for example
the high court is going to hear a case from Oregon about assisted
suicide, I dare you to find the place in the constitution about
assisted suicide. You can’t.”
A: But the tradition and history of this country says that people have generally agreed that abortion, gay marriage, etc. can be regulated by legislatures. That is how you interpret the constitution, according to the traditions and understandings of the people who wrote it"
K: I must ask, what are the roles of the three branches of
government. You seem confused as to the role of the Judaical
branch. The legislative branch (one branch) makes the laws.
The executive branch (one branch) enforces the laws
and Judicial branch (the third branch) decides if the other
two branches are acting within the limits of the
constitution.
K: “That is activist judges who overturn precedence for ideology”.
A: And I suppose the judges who originally decided Roe v. Wade and butchered the constitution weren’t ideologically motivated at all. They were deciding objectively based on… what? Not the text of the constitution. Not this country’s legal traditions. Just their own personal bias towards abortion."
K: And you have proof of this of course. Judges who have spent
years studying the law. Butchering the constitution?
Who is allowing their personal opinion to enter the conversation.
30 years of precedence exist for roe vs wade and why?
Because judges who have spent their whole life understanding
and studying the constitution have said that roe vs wade is
constitutional. Now you may object, but make sure your
objection is stated as a personal opinion, not as legal opinion.
If you have a legal opinion state it and then give your legal
credentials for such an opinion.
Kropotkin
The idea of Judicial Review isn’t mentioned in the Constitution. Marshall and his court worked out for itself what it can do. In point of fact, the argument for Judicial Review made Marshall an activist judge. If you have read the constitution you will note that the section dealing with the Supreme Court itself is rather sparse. As Marshall would contend, the court would have to fashion an apparatus to act as a check and balance.
Pro Business conservatives in the early twentieth century were activist judges. They regularly struck down legislation under substantive due process rules Oliver Wendall Holmes noted was nothing more than preference for one set of economic norms over another. In Lochner v New York, he even names the book his fellow Justice’s are reading and actively legislating from.
Legal realists note that in each and every case the presiding authority must choose how to decide a case, and this choice, even if a by the book interpretation was completely possible, is still a matter of choice on behalf of the judge(s). As a matter of course, mechanical jurisprudence, as you would have it, is only possible if you were to remove humans from the judical process and have us judged by machines. If that is not your cup o’ tea, accept that judges play activists in some form or another in every case, and even the ones you think are just because your subjective needs would wish it so.
Less than one third is enough of a much to qualify for the rhetorical “some”. Oppressive rhetoric indeed.
I agree, most of America is ignorant of what Roe v Wade means. It is a procedural issue. The 30% that would condemn it outright from some misbeguided notion of morality are indeed ignorant.
Thank you for clearing that up.
Gatecontrol, I am glad you brought up marshal.
I had forgotten him. (how I am not sure).
He in fact did create the idea of the supreme court,
as we know it and having the functions that it does.
And the case which is Marbury vs ? Can’t remember,
(boy getting old sucks) has never been challenged,
either by the legislature or by the executive branch.
It was never about the original intentions of the framers,
because the constitution was meant from the start to
be flexible to adapt to the changing conditions that the
country might face. Every generation has adapted
the constitution for its own needs. Understanding the
framework, is really all the supreme court
does. It does not guess what the original framers meant,
it simply reinterprets the constitution for a new generation.
Kropotkin
First, let’s get your questioning of my credentials out of the way…
My opinion here is both a personal and a legal opinion. SOME judges who have spent their lives studying the constitution have said that roe vs. wade was correctly decided. Many others strongly disagree. Roe vs. Wade itself was decided 7-2, with Justices Rehnquist and White dissenting for similar reasons as the ones I give here. Furthermore, a recent watershed case where Roe v. Wade hung in the balance was Planned Parenthood vs. Casey (1992). That case was decided 5-4, which is why abortion advocates are so concerned about the balance of the court shifting with Judge “Attila” Alito.
As a layman standing on the sidelines, listening to both sides of the argument, and reading commentaries about Roe v. Wade and constitutional law, I believe that those who argue against Roe vs. Wade have a much stronger, more reasonable case. In my opinion, their constitutional principles are much more coherent and consistent. You don’t need to be a lawyer to have a legal opinion, if there are lawyers to explain the law to you. That’s how juries work, if you will recall.
Furthermore, in general I have nothing but contempt for the “you have to be an expert to have an opinion” argument. Sometimes experts can be very silly, and it takes a common mind to put things on the right track.
What I want you to realize here is that this isn’t a situation where people just dislike abortion so they want to overturn Roe v. Wade. There are solid legal reasons to overturn it, which you can learn more about by reading (for example) Judge Scalia’s excellent dissent in Planned Parenthood vs. Casey.
Fair enough, but as I point out the text of the constitution is not the only important thing; the original intent is also construed by historical context, laws of the time, English common law from which our law is inherited, etc. Therefore a case in which the text of the constitution does not say anything explicit can still be decided reasonably without resorting to precedent.
I said that both the text of the constitution and the legal traditions of the country are important in discerning the original intent of the constitution and its amendments. Earlier rulings like Plessy vs. Ferguson even recognized the importance of the 14th Amendment in considering whether segregated public facilities were constitutional. If public facilities were unequal, thereby harming some people and benefitting others at their expense, then the government has failed to provide equal protection of the laws to its citizens. But the judges in Plessy turned a blind eye to the fact of unequal facilities and said that separate but equal is okay. Only in Brown did the court finally come to its senses and realize that “separate but equal” in legal terms meant “separate and unequal” in practical terms nearly everywhere, especially in schools. Therefore the court ended segregation to protect the 14th amendment which was being kept in principle but being violated in practice.
As you point out, the judiciary has to decide if laws are made in accordance with the constitution. In Brown clearly the states failed the constitution, so the courts stepped in. Nothing in my legal philosophy contradicts that decision.
Actually we can be pretty sure that the constitution DOES NOT say anything about protecting abortion rights or capital punishment. There were laws against abortion and authorizing capital punishment before, during, and after the ratification of the constitution. But there were no complaints about these when the constitution was written. But the constitution and the founding fathers made no effort to say those things were bad or good. If they did the constitution might not have been ratified because states wanted to keep their abortion laws or capital punishment laws or whatever. From this it is clear that the constitution was not intended to protect abortion rights or prohibit capital punishment.
As for assisted suicide, the constitution indeed says nothing about it. Our legal tradition doesn’t say anything about it either. So it should be left up to the states to decide whether to allow it or not. And I say this as a person who opposes assisted suicide. If I were an ideological zealot like some people, I would try to rape the judicial system and the constitution by getting the courts to ban assisted suicide. But I believe in the constitution, original intent, and that states and local communities have the right to make laws about what the constitution is silent about (as is said in the 9th and 10th amendments). Therefore I hope for judgments which will protect the constitution rather than cater to my ideological biases.
If you read the constitution more closely, it’s not just about giving all possible freedoms to individuals. It’s also about allowing communities, like state and local governments, the freedom to regulate things and make laws so long as there is equal protection, reasonable searches and seizures, reasonable criminal punishment, etc. Thinking that the constitution is just about letting people do whatever they want without hurting others (which I bet is your position) is reading your personal biases into the constitution rather than considering its original intent. You don’t get a free pass to make the supreme law of the land by interpreting “what it means to you”. It’s there, it’s objective, and if you want to change it, pass an amendment.
Read Scalia’s dissent in Planned Parenthood vs. Casey, and some of the other dissents, like those in Roe vs. Wade. There are some good commentaries on Roe that you can research too. I wrote a research paper on the legal aspects of Roe summing up these commentaries and dissents if you’d like to look at that, but it’d be better for you to do your own research.
If sound constitutional reasoning is what the MAJORITY of justices on the supreme court say it is, then the court is just another legislative body. Whatever they say is how it goes and nothing binds them but their own personal subjective opinions about what the constitution means “to them”. And if the court is a legislative body, there is no balance of power in the government and everything the founding fathers said in the Federalist Papers is shot to death.
The alternative is to recognize that we can discern the constitution’s original intent by studying the history of our country and its legal traditions. When we embrace this alternative we respect the wisdom of our ancestors who ratified the constitution rather than perverting their words to support whatever opinions we’d like to make law at the moment.
You’re the one who brought up slavery as a counterexample to my argument about original intent. When I turn it around on you and show that it was activist judges who screwed up on slavery, now all the sudden that old slavery stuff is so irrelevant. Saying that something is irrelevant because it’s old is a logical fallacy. In fact Dred Scott is relevant because the court ignored the original intent of the constitution to say that blacks could not be citizens when in fact there were black citizens in the country WHO VOTED FOR THE CONSTITUTION’S RATIFICATION (read wikipedia article on dred scott). Clearly they misinterpreted the original intent, and guess what? It fucked the country up. But if we’re to believe you, the constitution is whatever we say it is, so clearly Dred Scott was an excellent decision at the time because it’s what the court of the time said (even if we disagree with it now).
wrong wrong WRONG. I told you repeatedly last post, it’s not just exactly what’s in the constitution, the intent must be considered as well based on what was happening at the time. Do you just disregard things that don’t fit into your little box of opinions you know how to refute?
Yes, that’s right. But they have to interpret the constitution based on what the people of the time thought the constitution meant. That’s the original intent not only of the founding fathers, but of the American people who ratified the constitution. And clearly the people did not believe that the constitution gave a right to abortion because they regulated abortion long before and long after the constitution was ratified almost everywhere in the country. To say that the constitution no longer means what they thought it meant when they ratified it, is to effectively say that you know better than them and their laws aren’t important, only what you think and feel is important now. To disregard tradition is to disregard history, and those who disregard history are doomed to repeat its worst failures.
Well if you like, you can call that my activist use of the word “much”. Maybe “many” would be more connotatively accurate. “Some” could imply anything from the unabomber and his dog to 49% of Americans which is why I didn’t use it (and probably why you want me to use it). My point still stands, that having a minority opinion does not make me an “extremist” (whatever that means).
Which fits perfectly into the idea of understanding the constitution’s meaning by original intent. The original intent (as evidenced by the Federalist Papers, and other writings of the founding fathers and those who ratified the constitution) was to have each branch of the government keep the other branches from getting too much power. Without judicial review the judiciary is powerless to check the other branches of government, so in accordance with original intent the constitution was construed as giving the judiciary this power.
I don’t know where you’re getting the idea that I’m against “activist judges”. That’s a really stupid objection to what the court is doing, and a shame to the politicians who use that bromide. Obviously a judiciary must be “active” to perform its role of protecting the constitution. If you picture the judiciary as 9 musketeers guarding the constitution, of course they must sometimes thrust and parry. But they themselves must follow the code of honor embodied in the document they defend. The issue is original intent, not “activism”.
My knowledge of early 20th century history is weak, you’ll have to help me out here. But keep in mind that activism is not the problem, original intent is. Failing to defend the constitution is much worse than defending it, whether or not either is done actively or passively.
Or as you’d like to put completely unsupported words into my mouth,
Clearly machines would be inadequate to the task of something so human as understanding the history surrounding the constitution, and the mindsets of the people who created it and ratified it. That’s why we have humans to interpret the constitution.
well if you’d like to dismiss my claims about roe v. wade without doing any intellectual work, by all means label them “subjective needs”. But note also that my legal opinions are often in opposition to my “subjective needs”, or ideological orientation. For example, assisted suicide, which I oppose, should be left to the state legislatures because the constitution says nothing about it, and nobody’s ratification of the constitution stood on the idea that assisted suicide must be prohibited by the constitution.
I feel that the wisdom of the founding fathers should not be cast aside just so that we can circumvent legislative decisions we don’t like. How about you?
Yes, that’s why they put the amendment process in there. The founders would be disgusted with the way we’ve twisted the commerce clause, for example. That’s not the kind of flexibility they envisioned.
And what, praytell, is this framework, and how do you distinguish it from the junk that can be reinterpreted whenever you like?
What the heck does this mean? We know our needs better than some dead white males. If we’re supposed to “reinterpret” the constitution every generation, what we should do is write a new constitution every generation. But no, let’s not do anything so democratic. Let’s indirectly appoint 9 people to LIFETIME offices and let them decide what the new constitution should be.
Oh, GCT: I just read a little about Lochner vs. New York and all I have to say is thank god for John Marshall Harlan. And Holmes.
The idea of original intent itself is extra-legal. Do you find it in the law as it is written? No. Do you find it from people writing about the law? Yes.
Harlan was also the lone dissent in Plessy v Ferguson, oft regarded as the worst decision ever rendered by the Supreme Court. Ever wondered where the idea of “Separate but Equal” originated? It isn’t in the Constitution. It was mentioned first in a Louisiana statute supporting segregation. Seven Supreme Court Justices took it as a rule above the Fourteenth Amendment.
Sorry if I came across as rude, it just surprises me that anyone would think of the Constitution idealistically. Even if it does embody nothing but the most noble of ideas, the Justices charged with rendering decisions on it are, at best, only human, and at worst, petty humans at that.
I have a book here somewhere that collected opinion polls from over the past four or five decades and gauged public opinion as it might relate to the decisions rendered by the Supreme Court. Surprisingly, a large number of notable cases that are decided have verdicts that favor public opinion.