Judicial review and separation of powers, FUCK YEAH
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Anonymous2010-08-06 16:16
My favorite part is where the judge was appointed by conservatives themselves. Reagan appointed him but the Democrats didn't want him in because they were afraid he would be too harsh on gays. Bush (senior) finally got him in on the second try and now look what he did. It also turns out that he's gay himself. Fucking LOL
And yet again the will of the people doesn't matter one whit. These amendments are popular and are on the books in many states -- And they usually pass with double digit majorities. It's a travesty that our government is no longer even pretending to listen to its people.
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Anonymous2010-08-06 19:03
>>8
You act as if you think the system is not designed to maintain itself against capricious change. I would have been concerned if the judge - in face of the Fourteenth Amendment and in addition to prior invalidation of the equity of a situation that can described as "separate but equal" - sided with Prop 8. What a terrible judge, putting popularity before precedence! Imagine the arguments: "the Constitution does not permit people to marry whomever they consent to and get consent from" or "a situation where equal accommodations are made but different labels are used does not constitute separate." It was the right of the people to bring such a position to their state for passage; it was the right of the courts to rule against that position in light of superior laws.
If the movement is truly equitable, or is convincingly so, then continued push and law passage and contest will vet the required amount of representative authority to pass a change to the hitherto mentioned superior law (the Twenty-Eighth Amendment to the Bill of Rights?).
>>10 The correct spelling and grammar is FUCK YOU!
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Anonymous2010-08-07 0:14
>>9
If the sovereign individual States do not have the power to write their own laws defining marriage, they are not sovereign in any meaningful sense of the word.
Leftists like to use these arguments to turn the Constitution into a magical jack-in-the-box from which they can conjure anything at all they want to pop out of the top when they turn the crank. At base they mean there is no Constitution at all, and leftist judges are openly making things up as they go along, in accordance with the editorials published in the better opinion magazines.
>>11
Rude! Do you speak to your mother with that kind of language? Shameful, shameful.
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Anonymous2010-08-07 1:09
>>12
This is true. A judge - regardless of the level of the court - needs to possess both time-period contextual knowledge and literal interpretive powers. Eh, maybe he can waver it a tad in civil courts where things can get strange, but in criminal court and on matters pertaining to constitutionality he must be steadfast. That means he must even ignore public opinion and will if it goes against the predefined legality of the issue. That is what I believe; he is not elected to move the line, he is appointed to hold the line. Whether this happens in practice ...
As a state joined in the republic of the United States, California is subject to its legal outlines, can put forth measures through its representatives to amend that national legal outline (the Constitution) or may choose to secede. Beyond all of that, it can pass local elementary laws that do not conflict with the superior and may enforce these laws within its borders. As a sovereign state, as a member of the Republic that has even a semblance of unity, it is a balance of authority between the federal and state powers.
If you want my opinion, the whole matter is being gone about the wrong way. If the States want individual authority to define legal marriage with little contest, they should pass local Constitutional amendments to indicate that, then change the Constitution once more than 2/3rds have passed amendments like that, AND THEN construct their definition of marriage when they has balanced footing between authority of marriage determination (seemingly not an unconstitutional position) and the Fourteenth Amendment ("No State shall ... abridge the privileges or immunities of citizens [nor] deprive any person of life, liberty, or property...").
You say that a leftist would eat away the Constitution by warping it into whatever he wants it to mean; I understand that point. But how do you tell the difference, in this case, between a leftist who wraps the Constitution and a rightest who - by definition of being opposite the leftist - you may contend with that definition - supports only the specific and immutable meaning of the Constitution? I would argue that all right-leaning judges must then necessarily have timeless singular interpretation of the Constitution, while all leftist judges have whimsical interpretations. For example, do you mean that the Fourteenth Amendment, as written, only applied once in the late 19th-century and only to enfranchise the first generation of African Americans with citizenship?
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Anonymous2010-08-07 1:32
This is pissing me off.
Remind me why we can't just legalize gay marriage and be done with such a pointless issue?
Besides conservative and religious logic.
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Anonymous2010-08-07 4:22
>>1 and that following legalization of same-sex marriage, the advocates of the "gay agenda" would attempt to "legalize having sex with children".
Actually this makes some sense. But I would rephrase that as advocates for "equality". Who knows, thirty years down the line we may start seeing groups advocating for pedophiles' rights and their "equality". After all, once the gays are "emancipated" what other oppressed group is there left?
Well, I would call it a travesty when the people speak all over the country and tell the government over and over that they don't want something, and it gets crammed down their throats anyway. We're supposed to be a government OF THE PEOPLE, not of the judges. The judges are not accountable and no one gave them the power to arbitrarily nullify laws. Legislatures make laws, and judges interpret them.
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Anonymous2010-08-07 5:21
>>gays
>>marriage
olololol
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Anonymous2010-08-07 5:34
Prop 8 ruled unconstitutional
About time.
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Anonymous2010-08-07 7:47
Judge Walker found that Proposition 8's only justification is "a private moral view that same-sex couples are inferior to opposite-sex couples," and that the proponent's examples of state interests were "nothing more than post-hoc justifications."
In the opinion's final pages, he observes: "The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples." Because moral disapproval alone cannot support rational basis review, he held Proposition 8 violates Equal Protection as well.
He further noted that Proposition 8 was based on tradition and moral disapproval of homosexuality, and that those two things are not legal grounds for discrimination.
Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.
The judges are not accountable and no one gave them the power to arbitrarily nullify laws. We're supposed to be a government OF THE PEOPLE
"Of ...by...[and] for the people" is actually from the Gettysburg Address and has nothing to do with the US Constitution (is it in the California State Constitution?). Much like judicial review, that phrase is merely an expression that many people hold to be true and right, but is not granted legitimacy in the Constitution. In most honest terms, we're a "nation of laws" and even that is not a definition found in stone. Out of two people when who have been found to have performed the same legal infraction, not one is supposed to get special treatment compared to the other. Out of two laws that conflict about the exact same situation, only one is valid. How much reality melds with this definition is up to your opinion, but the ideal should never be shrugged because other people don't believe in it.
So, your first point should be to either have judicial review ruled unconstitutional (would be a fascinating trial) or pass a law or Amendment that determines such a thing can not be done (or insist that since it's not in the Constitution it can not be done; I would like that, honestly, but imagine the chaos its successful argument would cause). The original "judicial review case" was actually a jury determining that the law was unconstitutional, going against the judge who said they should consider the case in light of a given "incontestable" law.
"Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect ... declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course." (James Wilson, Constitutional Convention, 1787).
Is a nation a republic if every law passed by the elected representitives must be approved by unelected gatekeepers? How about if said gatekeepers could not only remove laws from the books, but tell the elected leaders of the nation what laws must be passed? That's our system right now -- the people may speak, but if the Judicial Ayatollahs don't like what the people say, then it doesn't matter.
And I choose the word Ayatollah carefully -- the system we have now is similare to the "Republic" of Iran. The people have "elections" and choose presidents and parliments, but all candidates and laws must be approved by the Supreme Council of Iran. If they don't like it, it can't happen even if every single person in Iran wants it. we are heading that direction.
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Anonymous2010-08-09 21:27
>>24
That's why we are a democratic republic; we combine the ideals of both. The whim of the people drives us forward, as long as you can get enough to believe, while the restraint of the system keeps us from going too far. I can not think of many pre-modern systems that actually designed so many inherent fail-safes and stabilizers. And its centerpiece was designed to leave unfettered the undeniable freedom individuals possess.
As to your question, the existence of these unelected is that they remain that way by permission. If that is what enough citizens disliked, then the people of this country are free to change that, but only if you can get enough people/States to dislike it. The change would only be as violent as the maniacs because the system is inherently designed thus that it may be changed without a drop of blood; not easily, for that is dangerous, but still that it can be changed.
I do take offense at your "Ayatollah" choice of word. Ayatollah are never elected to anything by anyone specific: the title is awarded by clerical peers to one who is considered a scholar-expert of Islamic tradition and is not awarded without the person already being well-sought in the community regarding matters of Islamic interpretation and tradition. Becoming an Ayatollah is very much, in this way, more of a demagogue's path. To those people, their tradition is that important and should not be mistaken as an argument against them.
Your related position regarding how their government is "fixed" I actually interpret as a reflection of a different problem for US: limited candidate pools, intentionally or otherwise. However, as is also demonstrated, no one in our system is not permitted to improve their political status if they are willing to do honest (please, honest!) work and remain receptive to their constituency and convictions.
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Anonymous2010-08-10 16:42
My choice of Ayatollah still stands -- the judges on the court are above any kind of redress. Once the supres have decided that we may not do something, that's the endo of the debate for all intents and purposes. The people have repeatedly had their will struck down again and again by the Ayatollahs at the supreme court. Not just gay marriage, but abortion and the arizona law as well. I suspect sooner or later the courts will strike down the Prop C law that passed by over 70% (it bans coercion from the government to purchase healthcare).
And as I mentioned earlier -- the courts have recently required congress to pass bills as well. The SCOTUS has basicly said that if congress doesn't pass a bill that is good enough for them, SCOTUS will direct the EPA to take over regulating carbon emissions. That isn't the way the courts are supposed to be opperating.
At some point the courts become tyranical, and I think we're honestly getting there.
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Anonymous2010-08-10 18:03
>>25
is uncomfortable because >>24 has hit on something that no one in 21st Century Ameri-kwa is comfortable admitting: this is not a democracy, nor is it a republic. It is that degenerate plutocratic form of government that Plato called *kritocracy,* rule by the judicial class.
If there are nine men in your nation whose every whim is law and against whom there is no possiblity of legal redress, they are dictators. You can call them a court, or a junta, or a secret council, or the Nine Unknown Men who Rule the World, but changing the label does not change the relationship between you and them.
>>27
Wasn't the judicial branch sort of always like that in a way though?
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Anonymous2010-08-10 19:18
The people have repeatedly had their will struck down again and again by the Ayatollahs at the supreme court.
Who are seated by whatever people the citizenry have selected to represent them. State Federal judges (Proposition 8) are not selected any differently than Supreme Court judges - tapped by the President, approved by the Congress - so I can see why you might bring up the latter but I can not justify all of your leaps to that point, including prejudging regarding the Prop C law. Of course a Federal judge can eventually; they don't all think the same. Who is to say it won't be the PEOPLE - just not the ones with your opinion that it is good - who will bring Proposition C to trial before a judge.
If I understand correctly, your argument is this: it should not be permissible for a person elected or appointed to office at some particular time, based on some vector of what they would likely do in given situations based on their appointers (e.g., the then-current President who is elected by the then-current people and the then-current Senate who are also elected by the then-current people) trust, should ever have any views that do not coincide with those of the now-current people. Since that was a bit unfairly long-winded: you do not like that the court system can be representative of anything but a current people's majority opinion.
In any case, my assumption does have two points. The first is contention against unelected offices; the second is a contention against anything in government that does not fulfill a public opinion, even if its reason has merit; and, both these points don't have to be valid at the same time. Even though I do have more I would like to say on other things, I believe it is more important for me that I understand your position or argument correctly.
In a true republic, the legislature has the most power out of the three branches of government. Executive is meant to be a check on the legislature, and the judicial is to interpret the constitutionality of the laws other two put forth. States are sovereign from Federal intrusion. Anything that is more or less than that, is a warped version of what was originally intended upon foundation.
My contention is that since the people have very few ways to redress an abuse of power by the kritocrats, they are in effect becoming dictators. A constitutional amendment is so difficult that it's really only happened 28 times in our history, and impeachment has never happened.
My beef isn't how such men are chosen, but the power that they weild with no accountability, and the length of their terms. Basicly, they get appointed and approved and are there until they die. These 9 men have too much power to dictate the acceptable range of laws to require new laws, and so on. Especially when it comes to referenda, which are voted on by the actual people in the area, this is dictatorship.
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Anonymous2010-08-12 12:47
>>32
I understand. To be fair, they can be impeached under terms of Article II Section 4 but the list of reasons is "treason, bribery, or other high crimes and misdemeanors" and it is the Senate that retains the right to try the defendant for all position where impeachment is possible (Article I Section 3). It's possible a referendum vote by the State where they are seated could put the matter of impeachment on the table of the Senate but that drops the ball into the hands of the Senate. And what crimes?
I was going to write "Impeachment of a Federal State judge has never been tried" but I then realized I really don't know that for certain and held my tongue. Then I found this - http://en.wikipedia.org/wiki/Impeachment_in_the_United_States#Impeachment_in_the_states - and this - http://en.wikipedia.org/wiki/Impeachment_investigations_of_United_States_federal_judges. I haven't run them all through due to personal time, but there appears to be an impeachment precedence (as well as some "resigned/died first" cases). The case of Samuel Chase in the Jefferson Administration has a note that perhaps you may find interesting: [T]he acquittal set an unofficial precedent that judges would not be impeached based on their performance on the bench. All judges impeached since Chase have been accused of outright criminality.
Neither here nor there.
Contradictory sets of laws still need to be sorted out in some way, shape, or form. You can't have one law say all people are guaranteed due process and another that states no people in this range are required to have their due process respected. As the Constitution is the ceiling and floor for the Republic's laws, whether or not you think it should be, where should local laws merits over national principle merits be debated?
The President? obligated to uphold the Constitution but elected by majority vote (even with the electoral college) to support the majority's opinion.
The House? obligated to uphold the Constitution but elected by majority vote to support the majority's opinion.
The Senate? obligated to uphold the Constitution but elected by majority vote to support the majority's opinion.
The judiciary is the only place where the majority's opinion is marginalized and the matters of law and legal precedence alone are (supposed to be) more important. If you wish to make a point of lowering their term limit I would have no qualm, but that would increase the influence of public opinion on judicial turnover. I likewise have no qualm against majority opinion but when should it not, itself, be stopped from becoming the dictator?
At minimum I'd like to see federal judges subject to either a 3/4 majority of the congress and able to be recalled if 2/3 of the states demand it. I'm not for anarchy, and we do need judges, but for some reason the founders never seemed to invision how tyrannical judges could become. That's the major problem -- we need a way to at least indirectly hold the judges accountable to the people.
Personally, I could care less about the prop 8 law. California should run California's government. I have no interest in it, i live in missouri.
>>34
The thing is, judges were never meant to "legislate from the bench", though they've been doing this for decades. Since that cat is out of the bag already, perhaps a check on them from the states and the legislative branch would be a good idea.
but for some reason the founders never seemed to invision how tyrannical judges could become.
Not true at all, they were well aware that the judiciary department could become tyrannical.[1] Though I believe they were more concerned with the executive or legislative branches becoming all too powerful, especially since the legislative branch is suppose to be the most powerful of the three in a true republic.
_____________________ References: [1] Federalist Papers #48,49,51,78,79,80,81,82,83 - http://www.constitution.org/fed/federa00.htm