Question… Where oh where is the respect? Oh, I get it, Democrats, Libruls, Blues, etc are expected to sheepishly come with hat in hand and demurely try not to insult, upset or annoy anyone else, lest it push them further into their unreasoning, unthinking, benighted, bigoted, Neanderthal stance, but it’s OK for them to throw insults and slurs. That one line puts the entire thing into perspectvie. We have to kiss your ass, but you can say anything you please. I call Bullshit.
Well “bigoted” and “benighted” and “Neanderthal” weren’t appearing on too many Valentines last I looked.
My position in this and other threads has been one of opposing (what I see as) judicial activism and defending (what I understand to be) the proper mode of decision- and policy-making, at least as was intended under governments such as that created by the U.S. Constitution. In case it wasn’t evident, my admittedly-irritated comments weren’t directed just at the homosexual activists; they reflected my dissatisfaction with all the (to me) shortcut-takers who view the Supreme Court as a way around the democratic process, to get a desired outcome on issues that are not necessarily of constitutional dimension, but are framed as such in order to get the desired result.
Brian points out that the Court exists for a reason and so recourse to it can’t always be illegitimate, and because I really don’t want to make anyone’s head explode by questioning judicial review, I won’t dispute that here. While it really is a separate issue, and while I can’t “prove” it, suffice to say that the view that the federal courts have on multiple occasions exceeded their proper authority so as to prohibit, or require, practices or programs about which the Constitution says nothing. Whether you agree that there has been systemic (and almost uniformly liberal) improper judicial activism, you can’t really dispute the scorecard: Many policies that are beloved of liberals, and that might have appeared on a “liberal progressive” legislative wish-list in 1960, have now been enshrined as law by the Supreme Court and other federal courts (without regard to whether they’d have been legislatively viable then or now). The law has been remade, in an almost uniformly liberal direction, but not by liberal legislators or voters, in this instance. I do not believe that substantive law and policy should be originated, in the first instance, by the courts. That is not their job, but they’ve taken it on.
There simply isn’t a corresponding scorecard of things that conservatives have won through the courts (hey, you can count the 2000 election, if you want, I’m generous; not much else, is there?). The only things the conservative cause has are what it started with (that of it which hasn’t been taken away by the courts, yet).
So . . . when yet another demand for minting new rights and rejecting settled laws comes along, sure, I’ll cop to being hypersensitive to the possibility that, once again, the proposal is to go to that great slot machine in W.D.C., pull the lever, and see what kind of goodies come out. Anytime anyone in this or other threads has made it plain they intend a program of persuasion for “SSM,” and not a judicial end-run, I’ve said the equivalent of: “Well, how can I argue with that approach, except to disagree on the details with you when the time comes?”
So yeah, my frustration with the fake-constitutional-right-manufacturers (as I see it) spills over from the many other areas where it goes on. Are you happier knowing I disagree with all the shrill liberal judicial activists, not just the homosexual ones?
Not entirely. The Supreme Court is part of the Checks and Balances deal. There are times when the Congress, President or even (gasp) The People go along with something that is wrong. Then, the Court is the place to go. If Congress passed a law and the President signed it, and it turned out to be a horrible disaster, the Court is where it can be overturned, if Congress won’t get off the dime. If for example The People and their leaders decided “them negroes don’t need no freedoms”, then where do you go? The Supreme Court. People go to the Court when all other avenues have been closed. So, it is not a shortcut by any means. It is the last resort. There is no guarantee they will even review a case. It has to have some merit or it gets thrown out. It has nothing to do with any"liberal progressive legislative wish-list" or “demand for minting new rights”. It has to do with rights that are supposed to be in existence, but are being denied unlawfully.
There you go again. They just did something you didn’t like. As many other people including myself, have been told, get over it. As many other people including myself, have been told, you will lose any support from the other side if you don’t “respect” them.
I understand your point about respect; I just don’t know of any less pejorative way to identify the problem (which I realize you don’t agree is as much of a problem, and may not agree it exists): “liberal judicial activism” is really the only way I can think of describing what I (and others) see as judges (“judicial”) exceeding the proper scope of their delegated duties (hence “activism”) to effect policy changes in a direction that is almost always leftward (“liberal.”). Or was it just “shrill” you objected to? Fair enough, though from the viewpoint of someone reviewing 40 years of almost uniformly pro-liberal-policy court decisions, there is something a little . . . disproportionate about each new claim that there is an urgent unmet constitutional need – “No another blatant deprivation of due process crying out for immediate redress!”
I have an interesting question for you, raised by your first paragraph: Who guards the guardians? That is, what is the check or balance on improper policymaking by the Supreme Court? Currently, there really isn’t one, other than death. As easily as you can imagine Congress and the President making a bad law, I can imagine the Supreme Court f’ing up royally. So the Supreme Court cleans up the other branches’ f’ups. Who cleans up theirs? Yes, you could pass a Constitutional Amendment. There’s been two dozen of those in U.S. history, whereas the S.C. hears almost 200 cases a year. And . . . even if you passed an amendment to fix the f’up, they could misconstrue that amendment too. It’s a real problem, which I believe has resulted from two (three, really) unanticipated historical developments: First, the record is mixed on how much substantive judicial review of laws the Founders intended; the approach we have now allows plenary review of laws, which is where the “second guessing” comes in; I’d suggest that many of the Framers would not have anticipated Marbury and would have built in additional limits on the judiciary if they had. Second, the Framers (I suspect) envisioned that allowing judges to serve “during good behavior” would impose substantive standards of professional performance, and that judges who didn’t follow the law or who issued unsound decisions could and would with some frequency be shitcanned through impeachment or other process; instead, no judge now stands any chance of being impeached for mis-applying the law or making crap up out of thin air (as I would see it), so there’s no outside check on their ability potentially to make their opinons everybody’s law. The third development was that liberals recognized the tremendous potential of persuading judges rather than legislators to implement their policies, in light of the judges’ not having to answer to anyone.
Finally, a right that is “supposed to be in existence” is kind of hard for me to comprehend. I can safely say that the reaction of just about every person involved in the drafting of the Constitution and the Fourteenth Amendment (and any other Amendment) to the proposition that they had just created a right to sodomy or to “gay marriage” might include incredulity, outrage, or incomprehension, but would not have included assent. If they didn’t mean to create such a right, it is hard to say that right is “supposed to be in existence.” Yes, times change, but that’s the point: If the consensus for “gay marriage” is to exist at all, it has to be gathered now; looking back to the enactments of almost-certainly-“homophobic” Dead White Males and saying that there is “supposed to be” a right to something no one’s ever recognized before now seems the wrong way to go about it. A “right” that’s never been clearly enacted, and never observed, practiced, or provided an enforcement mechanism, looks and sounds awfully like a not-yet-existent right to me. Maybe we can call it a pre-viable fetal right (I’ll refrain from applying Roe to determine how much protection needs to be afforded to such an embryonic-stage right).
Look.
You’re not going to protect the sanctity of marriage by legal implementation of “covenant marriages”. The fact is, there’s no reason to think future divorcees are any more or less likely to so bind themselves, because they rarely can recognize their pairing as a disaster waiting to happen until its too late. Those who have the good sense to not enter into such a contract might even be more likely to avoid divorce, since they know themselves and are mature enough to realize that marriage is not a guarantee of happiness.
It’s those folks who can stick with marriage even though they’re made suicidally miserable by it who really epitimize the beauty and holiness of the bond. Marriage is one of God’s sacraments, and people who know their own personal happiness is superceded by God’s command to be fruitful and multiply have no need for Earthly laws that seek to replace God’s Righteous Will with that of the State.
Yet there is a true epidemic of divorce in our holy nation, a plague of apostacy.
I say the simplest, most responsible solution is death by firing squad. “For the Lord is a God of retribution; he shall repay in full.” (Jeremiah 51:56) To those who flout the bonds of Holy Matrimony, consecrated by solemn vows in the presence of our Lord Jesus Christ, there can be only Death by Fire; and it is only right and fitting that those who wish to protect the sacredness of marriage should act as God’s instrument on Earth and smite the sinners, in God’s eternal mercy. So let us put aside this blasphemous speach of “two marriages”, one dissoluble and one not. Can we but condone the erosion of God’s holy bond between man and woman if we recognize any other kind of Union except the one described in the most holiest of vows, “'til Death do us part”? And if those who have left God for the fires of Hell have chosen through their own selfish will to break the holy bonds of matrimony, should not Death then come swiftly to them in this world, as it will in the next when they descend to the Fires of Hell?
The way I understand it, the reason the Supreme Court is appointed for life is so they won’t be controlled or influenced by any political party or group. It’s a great theory. It supposedly frees them of the need to run for election or pay back political favors. Theoretically, it helps to create or maintain consistency too. Does it work? Sometimes it does, sometimes it doesn’t. If you really want to get angry, then put that anger where it belongs - on the Presidents who appoint them. Those appointments are possibly the longest lasting legacy a President can make. That legacy lasts far beyond a President’s initial four year term and can affect entire generations. Do the Justices overstep their bounds? YES! They can and sometimes do.
Hopefully the liberal judges are balanced out by the conservative judges (and vice versa).
I don’t know who cleans up after the Supreme Court, other than the Justices who are appointed later on.
To talk about a right that exists but is denied, let’s say that you are left handed. Simple supposition. Now let’s say there were laws or practices that do not let you own property, vote, or get an education. Since there are more right handed people, and they don’t want you to get out of their control, The Will Of The People and their politicians (who want votes) says you are Not As Good As We Are. They start passing laws to make life miserable for you, or simply “forget” to repeal any such laws already in place. Does that make it proper? Wouldn’t you feel you have a right to live like everyone else? Wouldn’t you yell that the Constitution said all men were created equal? Wouldn’t you go to the Court to get those laws repealed, if nothing else had worked? That is what the SCOTUS is for. The Court does not make the laws, only Congress can, and only the President can sign or veto. The Court can by law only interpret those laws and declare them valid or invalid. Nothing more, nothing less.
I’ve seen some marriages (the vast minority true), where both partners would see this as a more humane solution than being forced to stay together.
Oh Lord, bless this thy Hand Grenade, that with it we may blow thine enemies to tiny pieces, in thine infinite mercy.
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Just let me note that overturning a law by announcing a rule that no such law can ever be viable, when that rule hasn’t ever been enunciated or recognized (e.g., announcing a right to sodomy) is, in effect, making new law. I agree this shouldn’t be happening, but it does.
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I wouldn’t yell that the Constitution said that all men were created equal, because it didn’t; the Declaration of Independence did, and rotsa ruck making an enforceable claim under that provision. See how easy it is, though, to mistake something that sounds good and unarguable (“all men equal” – Nice!) for being constitutionally required, even when it’s not?
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We didn’t always vote for President based on whom he would appoint to the Supreme Court. Look at campaign coverage from the 40s and 50s (and certainly further back) – I can rarely remember seeing this mentioned as an issue. Look at what we have today: “Those appointments are possibly the longest lasting legacy a President can make [I agree with you, but deplore the fact.]” How many people do you know in the U.S. who voted the way they did last time around because of the possibility of appointing S.C. Justices? I know many. Does this give you just a little pause that things may have gone way the hell off the rails and that the judiciary may have assumed an inordinate (and ultimately improper) degree of power? Why only since the 1980s, for the first time in 220 years, are elections turning or potentially turning on the keys to the S.C.? Isn’t there something odd, in a system of alleged checks and balances and equally-important separate branches of government, that the decision as to who gets to head one branch, and what he’ll do in that role, is less important than the fact that he will be able to appoint people to the other branch? I assure you the Founders never intended the prime role of the Executive Branch to be as understudies to, mere nominators of, or regents for the true reigning executive power as vested in the judicial branch, but even by your own characterization of the power of these clowns, that’s where we’re at.
You caught me on the words being in the Declaration. They are not in the Constitution. However, one led to the other. Is it reasonable that the people who signed one also agreed with the other? Would it be reasonable that these people thought they had it covered? The Constitution talks a lot about what government will not do, and does not anywhere say that anything not mentioned will be outlawed. Maybe the Declaration is the philosophical executive summary and the Constitution is the rules of order. Let’s go to extremes just to illustrate. Wherever the words are, what would it say about this country to suddenly announce that nobody is entitled to or can ever expect equality? What would happen if there was an announcement that we all were going back to a class system of nobles and serfs (good enough names)? All hell would break loose.
But…
The Supreme Court should never be the Regents or the Consuls of Rome, or any other such thing. They were never meant to be. They were supposed to be the check on others, and the referees when things get out of hand.
So now, I’m not sure if I’m arguing against of for you :eek:
It’s okay, I have an excellent source. The reason I asked was in response to Huerta’s statement:
When in fact the first part of the 15th simply reads:
The text contains no “singling out” of minorities, or blacks, nor references to parity with whites. It simply declares race/colour/former servitude to be a non-issue when it comes to voting. If we’re going to analyze the Constitution to determine:[ul][li]Which rights are explicitly defined []Which rights are implicit, and[]Which rights are absent[/ul][/li]I just feel we should be especially accurate and not say things are “explicit” when they are not. The Amendment doesn’t say minorities have parity with whites. In fact, if one were to look to a far distant future when whites were the minority, this amendment would protect their votes, too.
Despite the fact that the word “homosexual” doesn’t appear anywhere in the text, I think the 14th, section 1:
…covers the situation well enough. If you can argue that marriage contains “protections” (i.e. marital privilege regarding testimony, certain rights of inheritance, etc.) then there is no reason why a pair of consenting adult heterosexuals has access to these protections and a pair of consenting adult homosexuals does not. This looks to me like an implicit right, especially since homosexuals are campaigning for the right to do exactly the same thing heterosexuals have been doing for as long as the Republic has existed (and quite a bit longer, actually). It’s not a request for a right to do something totally new or unprecedented.
There’s also a related quibble to be had with this:
Well, as I’ve pointed out, the 14th does contain some text to that effect. It doesn’t say “created equal” but it does specifically say “equal protection”. The Declaration is a nice document, which I’ll admit has no force of law. The Constitution is even nicer, and it does.
Although Huerta seems to sort-of acknowledged that going to the courts isn’t “cheating” per se, he still can’t seem to resist expressing his distaste for that approach. I feel I should offer a clarification on one point, though:
It’s a biased statement, because citizens don’t generally go to the courts to have laws sustained, they go there to have laws challenged, and sustaining laws is more a conservative trait than a liberal one. You may as well argue that traffic court is being abused by people who don’t want to pay their tickets, when in fact traffic court exists so people can challenge (and try to avoid paying) their tickets.
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I should have expanded my shorthand reference to “the explicit text of the Constitution and the fact that there is no debate the 13th-15th Amenmdents were for for, about, and directed to black/racial equality because they had just finished fighting a massive war over, among other things, this issue.” Constructionist positions have no problem with taking historical context into account to figure out what the law’s authors meant it to mean. It’s just that no one can point to me a historical circumstance that would make me say, “The framer of that amendment clearly thought he was creating a right that would cover homosexual sodomy.” I can point to many historical circumstances that would make me think he wouldn’t have thought anything of the sort.
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You and I don’t really disagree over the nature of conservative and liberal politics and your above statement may well be an accurate description of the greater preference of liberals to challenge laws. It doesn’t, though, say anything about where and how these challenges should, usually, be brought. I suggest that fundamental policy changes, on issues that aren’t constitutionally mandated or prohibited, ought to be effected through the Legislature, but that liberals have been, for awhile now, skipping this step by dressing up non-constitutionally-mandated policy arguments as raising some constitutional issue when they’re impatient with the democratic process. Of course the person who is happy with the outcomes on these policies is a lot less likely to see any problem with this process, and the person happy with the Justices’ determination that a given policy must prevail (or, can’t be allowed), on constitutinal grounds, is likely to find a way to persuade himself that, yep, the Clear And Unambiguous Content Of The Constitution Logically Required such an outcome; there weren’t any personal views of the Court driving the result or anything, no sir.
Ask yourself this: if there’s a clear and extant right to sodomy, intended by the framers, as opposed to (let us imagine an alternate legal hypothesis) the whole “right” arising ten minutes ago simply from the modish liberal sensibilities of Ruth Ginsburg, why did it take 140 years to discover it? Answer: the Justices knew that if they announced such a right any sooner, the populace would have, for one of the few times, been sufficiently shocked and outraged to actually go to the extraordinary length of passing an Amendment to explicitly reverse the decision (they may yet do so; it’s a close call). “But then the system works! The Court won’t do anything too outrageous, for fear of being overruled by Amendment!” That is cold comfort. Saying the people are not quite outraged enough to go to the extraordinary lengths required to amend the Constitution to reverse an activist S.C. decision requiring issue X is far from the same as saying that there is a consensus in favor of X, or that X is constitutionally required. Activist judges disguising personal policy opinion as a constitutional mandate, but who are tactically somewhat constrained by a Machiavellian understanding of some limits on what they can get away with, are not an inspiriing (or constitutionally appropriate) version of what the Constitution intended the Supreme Court to be, but this is pretty close to the version that I think we have.
- I’ll return to my question about the lack of checks and balances on the Court. I am interested in hearing if anyone differs with my view that it is a very recent phenomenon to have a Presidential election heavily influenced by the issue of judicial nominations, and that this anomalous circumstance – millions of people viewing the President’s performance of his actual job over the next four years as almost secondary to whom he nominates for the real seats of power – indicates that something has been significantly changed, and not for the better, in our longstanding balance of powers.
Bricker has pointed out somewhere else that the liberals are reacting with relatively poor grace to the prospect that the judicial activist system they created and ‘legitimized’ may, for the first time, be used against them. Judicial activism’s not quite so much fun when the shoe’s on the other foot. But (for the reasons Brian stated), I think the risk of true “conservative judicial activism” is minimal – that is, no Bush Supreme Court will be finding a constitutional ‘right to life’ for fetusus, or holding that the Constitution forbids any state from allowing sodomy or “SSM,” or even holding that citizens of New York City have the right to own guns (despite the fact that it pretty explicitly seems to be in the Constitution), which would arguably be true examples of conservative judicial activism. At most, they would hold that the constitution didn’t have anything to say about certain laws that liberals would like to deligitimize – i.e., they’d be returning power to the electorate. And even at that, the liberals are not happy. Begin to see why making judges the unelected solons and arbiters of public policy isn’t always fun?
While the historical context is interesting, is it really of any legal weight? The 13-15th make no reference to the recent Civil War (aside from a bit in the 14th about “insurrection or rebellion”, nor do these amendments come with expiry dates, nor conditional clauses (i.e. “This amendment only applies immediately after times of major internal conflict”).
Well, I don’t want to argue by quibble, but this is the second time (at least) that you’ve shown some confusion about the issue at hand. The debate isn’t about permitting sodomy (the Lawrence decision addressed this, I thought), but rather about giving homosexuals access to marital contracts (or some civil-union equivalent).
Well, feel free to suggest an amendment altering the checks-and-balances slightly away from the courts, if you feel the courts have overstepped their bounds.
I’m glad you were able to drop the “shrill” adjective, but it isn’t really a mark of impatience to pursue the legal avenue most likely to get a favourable result. At the moment, the U.S. has taken a swing to the right, putting it at odds with justices who were appointed in the relatively liberal seventies, eighties and early nineties. I can easily imagine Bush putting a few right-wing nominees on the bench, and then see the country take a pendulum swing back to the left, putting it again at odds with SCOTUS. During that period, legislators will be able to heap on all kinds of laws, confident the courts won’t strike them down.
Gee, you’re sounding kinda bitter there, aren’t you? Challenges to existing law don’t always win, even if the challenger claims at length that they should. I don’t expect to see the death penalty shut down again anytime soon, nor do I expect Assault Weapons Ban II. Challenges to anti-polygamy laws routinely get shot down (and I don’t expect this to change in light of SSM laws). In addition, isn’t there a de facto requirement of necessity in law? The Assault Weapons Ban didn’t accomplish anything, so there seemed little point in extending it. What do SSM bans accomplish? It remains unclear to me.
Again, this debate isn’t about sodomy, or at least my part of it isn’t, so I find the whole issue of “outrage” a bit misplaced. Also, it’s not proven to me that justices work from some master plan. They certanly can (and should) consider the long-term effects of their decisions, but I don’t see any indication they’ve been holding back out of fear of being overruled by an amendment.
In a recent post of mine in a related thread, I suggested that the SSM proponents be careful that rushing the process might have that result, though.
Well, that is an interesting issue, I’ll admit, but so are debates on the value of the Electoral College or the two-party system, or other aspects of American politics that may have stayed longer than they should. I’d suggest either term limits on justices (say, 25 years, to shorten their impact) or repeal the 22nd so a popular President can stay in much longer (thus lengthening his impact). It’s a little off the topic of gay marriage, though.
Having the Court lag behind the “present popluar feelings” is good. We have the President and Congress acting like a pendulum over the years. Swing to the left, swing to the right. We have the Court swinging in the opposite direction. So, they act like a brake on each other, and over time they temper each other’s excesses. Gee. Maybe the system works just the way it is.
So you think that’s all that Bush has become?
The nominations process is part of the checks and balances system itself. The President and the Senators, all elected by vote of the people, determine who will be the Justices. Congress can also act to impeach a Justice. The system of checks and balances is in place. If the elected representatives of the people choose to advise and consent or if they choose not to impeach, that doesn’t mean that the checks and balances aren’t working. (They just may not be working the way you want them to. The people still have a voice. Many voices.)
And, of course, each branch of the government is as strong as the other two.
I wasn’t keeping score, but I’m sure you’re right. That is strange, isn’t it – considering that this court is evenly balanced with O’Conner generally being the swing vote. I would speculate that the lack of a comparable scorecard lies not with the courts, then, but with the issues presented from the Conservative perspective.
If I make further comment, it will be on the subject of the OP. All of this graciousness is wearing thin.
Wasn’t it Ireland that since it was founded had outlawed divorce. It led to polygamy, in that, it wasn’t unusually to meet someone with a legal first wife, but living with someone else as a common-law wife.