I was discussing with a friend the Kavanaugh and Gorsich appointments and what that might mean for the future of Roe v Wade. She was not terribly worried because she felt confident that the SC doesn't really make new laws, and would be very unlikely to simply over turn something as well established as a woman's right to choose.
That got me thinking, and I wonder what people would think about the following argument:
There have been several examples in the last 50 years where the right has managed to basically create entirely new law on critical issues by consistently winning the "Who can pack the Supreme Court better" game.
1. Gun rights. Prior to Heller, the idea that the 2nd Amendment had much of anything to do with individuals right to tote around particular weapons was not at all established law in the US. Indeed, all the way back to Washingtons presidency there were laws regulated the ownership of arms, and it was pretty much a reversal of previous jurisprudence that saw the invention by the NRA of the individual right to own weapons outside of any militia pretty much out of whole cloth.
https://www.washingtonpost.com/outlook/2019/09/09/why-accurate-history-must-guide-coming-debate-about-guns-second-amendment/ (https://www.washingtonpost.com/outlook/2019/09/09/why-accurate-history-must-guide-coming-debate-about-guns-second-amendment/)
QuoteAlthough this civic republican understanding of the Second Amendment did not preclude citizens from owning and using guns for lawful purposes, there was a consensus throughout the 19th century that state and local governments maintained broad police powers to regulate the carrying of dangerous weapons in public. The Supreme Court applied the militia-centered (or collective) view of the right to bear arms well into the 20th century. It upheld the 1934 National Firearms Act and the 1938 Gun Control Act, which imposed severe restrictions on machine guns, sawed-off shotguns and silencers. In United States v. Miller (1939), the court found the Second Amendment protected the right to keep and bear firearms only for certain military purposes.
Heller invented a new right that never existed before, on the basis of a theme that the NRA had been pushing for years. This was only possible by getting right wing justices on the court willing to overlook the actual law and history in favor of their political ideology and the power behind those who put them there (the NRA support for the Republican Party).
2. Citizens United. Again, a right wing court invents out of thin air law that never existed before, and overturns significant precedence in the process. Again, it is a straight ideological "decision" where it is pretty clear that those creating new law could not and did not care one bit about the actual history or law, they simply created new ideological law and then slapped a thin veneer of justification over the top. This is even more appalling than the NRA sponsored re-writing of the Constitituion, since it represented a direct attack on representative democracy intended and aligned in such a way as to promote a particular political party over the other.
https://www.acslaw.org/issue_brief/briefs-landing/a-right-wing-rout-what-the-roberts-five-decisions-tell-us-about-the-integrity-of-todays-supreme-court/ (https://www.acslaw.org/issue_brief/briefs-landing/a-right-wing-rout-what-the-roberts-five-decisions-tell-us-about-the-integrity-of-todays-supreme-court/)
You can argue pretty convincingly that if the planet gets totally fucked by gobal warming, we will have Citizens United to blame. I opened up the ampaign finance system to companies with money to spend, and the fossil fuel industry has lot and lots and lots of money to spend. You used to be able to find Republicans who were climate activist. Not anymore. It is not possible to get elected as a Republican who believes in climate science - the oil companies will invest heavily in your primary and you will be gone.
QuoteFirst, political control: conservative interests seek to control the political process by giving their corporate, and often secret, big-money benefactors more freedom to spend on elections. This, in turn, helps them drown out opposing voices, manipulate political outcomes and set the agenda in Congress. For proof of this dynamic, look no further than how the Court's decision in Citizens United proved the death knell for climate change legislation in Congress. Before that fateful decision, which lifted restrictions on corporate spending in candidate elections, Congress had held regular, bipartisan hearings and even votes on legislation to limit the carbon emissions causing climate change. But Citizens United allowed the fossil fuel industry to use its massive money advantage to strike at this bipartisan progress, and it struck hard. The fossil fuel industry set its political forces instantly to work, targeting pro-climate-action candidates, particularly Republicans. Outside spending in 2010's congressional races increased by more than $200 million over the previous midterm's levels—a nearly 450 percent increase.[7] Bipartisanship stopped dead.
3. Shelby County vs. Holder. The US Congress in 2006 voted 98-0 in the Senate and 390-33 in the House to extend the Voting Rights Act another 25 years. Eight years later, those 5 Conservative Justices threw it our and declare the end of racism in America. Turns out that there is no need for voter protection anymore, because there was no racism anymore. Again, a purely ideological decision that threw out Congresses power as a legislative body and finder of fact. The results of course, speak for themselves, with multiple southern states engaged in voter suppression attempts - not an unforeseen consequence of the decision, but in fact the intended outcome.
Row v Wade could very definitely be gone once they find the right case to bring. The five conservative justices have a well established history at this point, and it is perfectly clear what their judicial mandate is, and it has very little to do with the law or the US Constitution.
Is there a solution?
Also, could you keep the puns to a minimum? kthx
Quote from: The Brain on September 18, 2019, 04:46:20 PM
Is there a solution?
Not an easy one. The breaking of norms by Republicans in power of late have prevented any chance of a shift in power at the Supreme Court for years if not decades to come. I think we're in line for even more awfulness ahead. I suppose that with every other piece of government being actively dysfunctional or broken you could try an FDR court packing effort if Democrats manage to take control of the Presidency and Congress. As to Citizen's Untied, I've always found the following clip from Keith Olbermann from 2010 to be amazingly accurate. I like to watch it every now and again as well as share it to marvel at its prescience. https://www.youtube.com/watch?v=PKZKETizybw
I think the Dems should absolutely pack the court if they can. The Republicans already broke the fig leaf political neutrality of the court itself, and the make up of it with the refusal to let Obama appoint a justice.
And they did not do so lightly - they knew exactly how important this was - how much of their current power is directly related to that 5-4 majority on the court. They would, have, and will do anything they can to maintain that control.
If the Dems continue to play a game by rules that nobody else if following, the Republicans will never relinquish their stranglehold on the court, no matter what public opinion or the law says.
Quote from: Benedict Arnold on September 18, 2019, 04:56:03 PM
(snip) As to Citizen's Untied, I've always found the following clip from Keith Olbermann from 2010 to be amazingly accurate. I like to watch it every now and again as well as share it to marvel at its prescience. https://www.youtube.com/watch?v=PKZKETizybw
Actually, that clip is more amusing than amazing, as he totally missed the actual impact of Citizens United. Walmart is abandoning small towns, not taking them over. The Tea party is stronger than ever. He was right about tax cuts, but that was old news even as he spoke.
The real impact, which he (almost completely) missed (he almost gets there at the end), was the fact that organizations contain all of the vices but none of the virtues of individuals. Corporate board members, as individuals, lose sleep over the thought of the world that they are leaving their children. As members of a group, they bleat about their responsibility to their shareholders and fuck over that world. Dred Scott II was the ruling that said that their combined vices were as valid as their individual virtues. Therein lies the problem.
If there was one constitutional amendment I could make, it would be this: no one can contribute to an election campaign in which they cannot vote.
Quote from: Berkut on September 18, 2019, 04:37:00 PM
I was discussing with a friend the Kavanaugh and Gorsich appointments and what that might mean for the future of Roe v Wade. She was not terribly worried because she felt confident that the SC doesn't really make new laws, and would be very unlikely to simply over turn something as well established as a woman's right to choose.
You could add literally hundreds of examples to your list of 3 that would prove this proposition wrong.
What is the greater power, the power to enact new laws or the power to say what those laws mean?
There is no definitive answer to the question but it should be obvious that the latter power is very significant indeed.
Quote from: grumbler on September 18, 2019, 06:42:54 PM
The real impact, which he (almost completely) missed (he almost gets there at the end), was the fact that organizations contain all of the vices but none of the virtues of individuals.
That's a good point. Corporations can be like machines for the diffusion of moral responsibility.
Corporations (and LLCs/LPs/etc) are incredibly useful tools, but they are just that. Tools. We panic about the hypothetical future possibility of our tools assuming human characteristics and taking over (in the guise of robots), but many of our otherwise intelligent fellow citizens and leaders think nothing of allowing our tools in organizational form to do the same.
Quote from: The Minsky Moment on September 18, 2019, 10:34:55 PM
That's a good point. Corporations can be like machines for the diffusion of moral responsibility.
Corporations (and LLCs/LPs/etc) are incredibly useful tools, but they are just that. Tools. We panic about the hypothetical future possibility of our tools assuming human characteristics and taking over (in the guise of robots), but many of our otherwise intelligent fellow citizens and leaders think nothing of allowing our tools in organizational form to do the same.
codswallop
The structures themselves don't make moral choices; the humans intertwined in the structures do. Structures don't have agency.
Quote from: Admiral Yi on September 19, 2019, 12:01:31 AM
The structures themselves don't make moral choices; the humans intertwined in the structures do. Structures don't have agency.
Congratulations. You just demolished the premises that underlie Citizens United and Hobby Lobby.
Quote from: The Minsky Moment on September 19, 2019, 12:03:03 AM
Congratulations. You just demolished the premises that underlie Citizens United and Hobby Lobby.
I don't see it that way.
Quote from: Admiral Yi on September 19, 2019, 12:01:31 AM
codswallop
The structures themselves don't make moral choices; the humans intertwined in the structures do. Structures don't have agency.
https://en.m.wikipedia.org/wiki/Institutional_analysis
Mandatory retirement and a maximum of, say, 12-5 years on the court would probably help.
Quote from: grumbler on September 18, 2019, 06:42:54 PM
Actually, that clip is more amusing than amazing, as he totally missed the actual impact of Citizens United. (snip)
Yeah, I'm going to have to go ahead and ask you to put me with Raz if you're going to be that disingenuous when it comes to replies. I've known for quite a while we don't see eye to eye on posting and especially political items, but the last few year plus you've gotten to the point where I have zero interest in engaging with you or having you engage with me. Keep your shtick for those who haven't burned out on it yet, I'm all done. Thanks! :)
The UK doesn't seem to have a similar problem? What's the difference in the two systems?
Quote from: Benedict Arnold on September 19, 2019, 04:12:23 AM
Quote from: grumbler on September 18, 2019, 06:42:54 PM
Actually, that clip is more amusing than amazing, as he totally missed the actual impact of Citizens United. (snip)
Yeah, I'm going to have to go ahead and ask you to put me with Raz if you're going to be that disingenuous when it comes to replies. I've known for quite a while we don't see eye to eye on posting and especially political items, but the last few year plus you've gotten to the point where I have zero interest in engaging with you or having you engage with me. Keep your shtick for those who haven't burned out on it yet, I'm all done. Thanks! :)
Sorry, I don't do requests. Feel free to ignore my posts, though. Thanks. :)
Quote from: Berkut on September 18, 2019, 05:27:19 PM
I think the Dems should absolutely pack the court if they can.
Quote from: jimmy olsen on September 19, 2019, 02:48:10 AM
Pack the court.
So, at the moment the court is 5-4; let's assume the Democrats try to pack the court by adding 2 extra justices making is 5:6. Then the Republicans get in power again and with the example having been made add 2 extra justices themselves making it 7:6; or perhaps a justice retired during the Democrat period and it is 4:7 and to fix this they have to add four new justices making it 8:7.
I am aware that nowhere in the Constitution does it say how many justices there should be on the bench so where does this stop? How long before a constitutional amendment has to be done to fix the number of Justices on the court?
It was a stupid "let the genie out of the bottle" idea when Roosevelt thought it up and I don't see how this is any different now.
Term limits, on the other hand, may be something the USA should explore as an option given the precedent is there with the term limiting of the President.
Quote from: Agelastus on September 19, 2019, 07:23:52 AM
Term limits, on the other hand, may be something the USA should explore as an option given the precedent is there with the term limiting of the President.
That would require an amendment to the Constitution, packing the court does not.
Quote from: The Minsky Moment on September 19, 2019, 12:03:03 AM
Quote from: Admiral Yi on September 19, 2019, 12:01:31 AM
The structures themselves don't make moral choices; the humans intertwined in the structures do. Structures don't have agency.
Congratulations. You just demolished the premises that underlie Citizens United and Hobby Lobby.
Well done :)
Although one has to have a better understanding of corporate law than the USSC to see what you did.
Quote from: Agelastus on September 19, 2019, 07:23:52 AM
Quote from: Berkut on September 18, 2019, 05:27:19 PM
I think the Dems should absolutely pack the court if they can.
Quote from: jimmy olsen on September 19, 2019, 02:48:10 AM
Pack the court.
So, at the moment the court is 5-4; let's assume the Democrats try to pack the court by adding 2 extra justices making is 5:6. Then the Republicans get in power again and with the example having been made add 2 extra justices themselves making it 7:6; or perhaps a justice retired during the Democrat period and it is 4:7 and to fix this they have to add four new justices making it 8:7.
I am aware that nowhere in the Constitution does it say how many justices there should be on the bench so where does this stop? How long before a constitutional amendment has to be done to fix the number of Justices on the court?
It was a stupid "let the genie out of the bottle" idea when Roosevelt thought it up and I don't see how this is any different now.
Term limits, on the other hand, may be something the USA should explore as an option given the precedent is there with the term limiting of the President.
Are you saying that if the Dems do this, then they would be on even footing with the Republicans, and they both could use that to try to game the system?
OH TEH HORROR!!!!!
You are missing the point. Gaming the system is how the Republicans have decided the game is being played. They just refused to allow the President to appoint a justice.
I agree that in theory this sucks, but we don't get to play in the world of theory. In the actual world, gaming the system is the only game to be played.
Berkut, you have identified one of the most troubling things for me. I have been educated and trained to support the Rule of Law as one of the pillars of a strong Liberal Democracy. But what happens when the institutions which are charged to uphold the Rule of Law are corrupted?
I would like to hear Oex on this one. I think this is something his particular area of expertise can helpfully inform. :)
Somehow I feel like this all goes back to Bill Clinton and the blind rage he inspired. The Republicans were not like this before the late 90s.
Quote from: crazy canuck on September 19, 2019, 11:15:33 AM
Berkut, you have identified one of the most troubling things for me. I have been educated and trained to support the Rule of Law as one of the pillars of a strong Liberal Democracy. But what happens when the institutions which are charged to uphold the Rule of Law are corrupted?
I would like to hear Oex on this one. I think this is something his particular area of expertise can helpfully inform. :)
I think it is actually even a bit worse than that.
It isn't just a lack of respect for law, which is bad enough. It is a lack of respect for custom which is worse. Laws can be changed, and honestly, they are a rather blunt tool anyway.
The lack of respect for the customs of power that exist outside the law is worse. Because there isn't any "law" those supporting the violation can just say "Hah, but he didn't break the law so its ok!". And this means that if we want to constrain power, we have to go write a law to do so - but if the unwritten law has already been broken, why does anyone want to limit *themselves* when they have power?
If a Democrat is elected, and lets even say they take the Senate as well. What we would LIKE to see happen is that all those customs that Trump threw out get written into law so they won't get thrown out anymore. Like divestuture, declaring your financial situation openly, etc., etc.
Two problems with that:
1. It just sucks that we ahve to write blunt laws to handle subtle and nuanced issues that were previously handled by precedence, custom, and political punishment for their violation. It is, by definition, almost impossible to violate the spirit of a convention, since it is all spirit. But if your law is not well written, or even if it is but just doesn't anticipate some corner case, it becomes easy to meet the letter of the law while flouting its spirit completely.
2. The Dems will be sorely tempted, especially if they really crush the right, to not institute those rules. After all, the last guy didn't ahve to follow them, so why should we? *We* are the good guys, and will be in power for a long time....surely we can deal with that later....
The US Founding Fathers set up a system that outright assumed people would act like power-hungry assclowns if they got the chance. That's why they put so much emphasis on "checks and balances".
What they failed to anticipate is the corrupting ability of party loyalty above all. That people in Congress and the Judiciary would all cooperate together to undermine the system and prevent it from working as intended.
Quote from: Malthus on September 19, 2019, 11:37:16 AM
The US Founding Fathers set up a system that outright assumed people would act like power-hungry assclowns if they got the chance. That's why they put so much emphasis on "checks and balances".
What they failed to anticipate is the corrupting ability of party loyalty above all. That people in Congress and the Judiciary would all cooperate together to undermine the system and prevent it from working as intended.
Because they didn't consider the fact that we would not all have the same religious background?
Quote from: Grey Fox on September 19, 2019, 11:40:12 AM
Because they didn't consider the fact that we would not all have the same religious background?
In what way did they not consider that fact?
Quote from: Valmy on September 19, 2019, 11:43:28 AM
Quote from: Grey Fox on September 19, 2019, 11:40:12 AM
Because they didn't consider the fact that we would not all have the same religious background?
In what way did they not consider that fact?
I don't know how to prove the absence of something with more than "they didn't". :hmm:
Quote from: Grey Fox on September 19, 2019, 11:45:54 AM
Quote from: Valmy on September 19, 2019, 11:43:28 AM
Quote from: Grey Fox on September 19, 2019, 11:40:12 AM
Because they didn't consider the fact that we would not all have the same religious background?
In what way did they not consider that fact?
I don't know how to prove the absence of something with more than "they didn't". :hmm:
You don't have to prove anything, simply explain WTF you are talking about. Because, after all, they did have differing religious ideas and specifically made a secular government.
Quote from: Valmy on September 19, 2019, 11:48:09 AM
Quote from: Grey Fox on September 19, 2019, 11:45:54 AM
Quote from: Valmy on September 19, 2019, 11:43:28 AM
Quote from: Grey Fox on September 19, 2019, 11:40:12 AM
Because they didn't consider the fact that we would not all have the same religious background?
In what way did they not consider that fact?
I don't know how to prove the absence of something with more than "they didn't". :hmm:
You don't have to prove anything, simply explain WTF you are talking about. Because, after all, they did have differing religious ideas and specifically made a secular government.
:lol:
They didn't anticipate the need for protestant groups to circle the wagon & throw their undying religious faith behind 1 party.
It's not a secular government, it's a christian government.
Quote from: Grey Fox on September 19, 2019, 11:51:25 AM
:lol:
They didn't anticipate the need for protestant groups to circle the wagon & throw their undying religious faith behind 1 party.
It's not a secular government, it's a christian government.
They didn't anticipate the formation of political parties period, which is kind of funny in retrospect since they all formed them, and all the stuff that goes with that, very quickly.
And ok so there are Christian people in the government forming coalitions, what kind of government should they have designed to prevent that? Besides most Democrats are also Christian and plenty of non-Protestants carry a torch for the Republicans. Hans is a Catholic.
I don't get the LOLZ smiley there.
Quote from: Valmy on September 19, 2019, 11:56:04 AM
Quote from: Grey Fox on September 19, 2019, 11:51:25 AM
:lol:
They didn't anticipate the need for protestant groups to circle the wagon & throw their undying religious faith behind 1 party.
It's not a secular government, it's a christian government.
They didn't anticipate the formation of political parties period, which is kind of funny in retrospect since they all formed them, and all the stuff that goes with that, very quickly.
And ok so there are Christian people in the government forming coalitions, what kind of government should they have designed to prevent that? Besides most Democrats are also Christian and plenty of non-Protestants carry a torch for the Republicans. Hans is a Catholic.
I don't get the LOLZ smiley there.
The lolz smiley is my reaction to my misunderstanding of your question.
I don't think they were anyway to do prevent it in the 1770s.
That's not the same thing. The Founding fathers designed a system of government for Christians by Christians. It be unfair to ask them to do anything but as it was their reality.
Quote from: Berkut on September 19, 2019, 11:23:11 AM
Quote from: crazy canuck on September 19, 2019, 11:15:33 AM
Berkut, you have identified one of the most troubling things for me. I have been educated and trained to support the Rule of Law as one of the pillars of a strong Liberal Democracy. But what happens when the institutions which are charged to uphold the Rule of Law are corrupted?
I would like to hear Oex on this one. I think this is something his particular area of expertise can helpfully inform. :)
I think it is actually even a bit worse than that.
It isn't just a lack of respect for law, which is bad enough. It is a lack of respect for custom which is worse. Laws can be changed, and honestly, they are a rather blunt tool anyway.
The lack of respect for the customs of power that exist outside the law is worse. Because there isn't any "law" those supporting the violation can just say "Hah, but he didn't break the law so its ok!". And this means that if we want to constrain power, we have to go write a law to do so - but if the unwritten law has already been broken, why does anyone want to limit *themselves* when they have power?
If a Democrat is elected, and lets even say they take the Senate as well. What we would LIKE to see happen is that all those customs that Trump threw out get written into law so they won't get thrown out anymore. Like divestuture, declaring your financial situation openly, etc., etc.
Two problems with that:
1. It just sucks that we ahve to write blunt laws to handle subtle and nuanced issues that were previously handled by precedence, custom, and political punishment for their violation. It is, by definition, almost impossible to violate the spirit of a convention, since it is all spirit. But if your law is not well written, or even if it is but just doesn't anticipate some corner case, it becomes easy to meet the letter of the law while flouting its spirit completely.
2. The Dems will be sorely tempted, especially if they really crush the right, to not institute those rules. After all, the last guy didn't ahve to follow them, so why should we? *We* are the good guys, and will be in power for a long time....surely we can deal with that later....
A bit of a quibble which goes to a common misconception which confuses the Rule of Law with Rule by Law. Rule by Law is the very problem the US is now in. The Rule of Law is not the rule of laws passed by the government of the day. If that were so then the adherence to the Rule of Law would mean that one must follow laws which are passed no matter how draconian or arbitrary. That is the antithesis of The Rule of Law. It is one of those concepts that is difficult to define but it requires a number of things, including that laws be fair, equally applied to all and, in the context we are discussing, the courts ensure that everyone is accountable to those fairly and equally applied laws. As such the Rule of Law has a lot more to do with the norms you are talking about and so I think we are essentially saying the same thing. :)
Quote from: crazy canuck on September 19, 2019, 12:53:55 PM
A bit of a quibble which goes to a common misconception which confuses the Rule of Law with Rule by Law. Rule by Law is the very problem the US is now in. The Rule of Law is not the rule of laws passed by the government of the day. If that were so then the adherence to the Rule of Law would mean that one must follow laws which are passed no matter how draconian or arbitrary. That is the antithesis of The Rule of Law. It is one of those concepts that is difficult to define but it requires a number of things, including that laws be fair, equally applied to all and, in the context we are discussing, the courts ensure that everyone is accountable to those fairly and equally applied laws. As such the Rule of Law has a lot more to do with the norms you are talking about and so I think we are essentially saying the same thing. :)
Yeah, some people hear "rule of law" and respond "what about the laws in Nazi Germany?"
The Rule of Law, to be meaningful, has to mean much more than 'following the laws'.
I like the approach taken by the World Justice Institute:
Accountability
The government as well as private actors are accountable under the law.
Just Laws
The laws are clear, publicized, and stable; are applied evenly; and protect fundamental rights, including the security of persons and contract, property, and human rights.
Open Government
The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
Accessible & Impartial Dispute Resolution
Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.
https://worldjusticeproject.org/about-us/overview/what-rule-law
Compare 'stacking the Supreme Court to support the President, right or wrong' to these principles ...
I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.
Quote from: The Brain on September 19, 2019, 01:46:23 PM
I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.
Democracy is not separate from the Rule of Law. Rather the Rule of Law is essential to a healthy democracy. I am not sure what you mean by "the law' being made more than what it is. Without the Rule of Law there can be no democracy.
I wonder whether that is the real problem with Liberal Democracy. People have forgotten what it is. This sort of thing was taught in grade school back in the day.
Quote from: The Brain on September 19, 2019, 01:46:23 PM
I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.
The Rule of Law has always meant more than simply being law-abiding. The contrast is between rule
of law, and rule
by law. The former holds that the law acts as a brake upon the arbitrary exercise of power; the latter, that it is the tool of power to get its way.
Quote from: crazy canuck on September 19, 2019, 01:56:16 PM
Quote from: The Brain on September 19, 2019, 01:46:23 PM
I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.
Democracy is not separate from the Rule of Law. Rather the Rule of Law is essential to a healthy democracy. I am not sure what you mean by "the law' being made more than what it is. Without the Rule of Law there can be no democracy.
lolwut
Quote from: Malthus on September 19, 2019, 02:00:43 PM
Quote from: The Brain on September 19, 2019, 01:46:23 PM
I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.
The Rule of Law has always meant more than simply being law-abiding. The contrast is between rule of law, and rule by law. The former holds that the law acts as a brake upon the arbitrary exercise of power; the latter, that it is the tool of power to get its way.
I don't see it. Sounds like a power grab by lawyers.
Quote from: The Brain on September 19, 2019, 02:04:06 PM
I don't see it. Sounds like a power grab by lawyers.
That's the beauty of being a lawyer: we get power under
both the "rule of law"
and the "rule by law". :D
However, lawyer or not - I know which set of principles makes for a better society.
Quote from: The Brain on September 19, 2019, 02:04:06 PM
Quote from: Malthus on September 19, 2019, 02:00:43 PM
Quote from: The Brain on September 19, 2019, 01:46:23 PM
I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.
The Rule of Law has always meant more than simply being law-abiding. The contrast is between rule of law, and rule by law. The former holds that the law acts as a brake upon the arbitrary exercise of power; the latter, that it is the tool of power to get its way.
I don't see it. Sounds like a power grab by lawyers.
:shifty:
Quote from: The Brain on September 19, 2019, 02:01:24 PM
Quote from: crazy canuck on September 19, 2019, 01:56:16 PM
Quote from: The Brain on September 19, 2019, 01:46:23 PM
I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.
Democracy is not separate from the Rule of Law. Rather the Rule of Law is essential to a healthy democracy. I am not sure what you mean by "the law' being made more than what it is. Without the Rule of Law there can be no democracy.
lolwut
Right back at you. This is pretty basic stuff.
Seems to me you are redefining democracy to be something more specific than it is. It just means rule by the people. A democracy doesn't necessarily mean all people will be treated equally.
Quote from: Eddie Teach on September 19, 2019, 02:33:55 PM
Seems to me you are redefining democracy to be something more specific than it is. It just means rule by the people. A democracy doesn't necessarily mean all people will be treated equally.
At its most reductive form, yes. But we are talking about Liberal Democracy here. That does necessarily mean that all people will be treated equally before the law.
Quote from: Monoriu on September 19, 2019, 04:45:30 AM
The UK doesn't seem to have a similar problem? What's the difference in the two systems?
Totally different constitutional order, approach to civil service/government work are probably the two big ones I'd flag.
One thing I would think is maybe good to transfer over to the US (but is unilateral disarmament so impossible) is more diverse professional background of lawyers. This all could be nonsense but I think all SCOTUS justices have previously worked through the government at some level which I think is the career ladder for a judge in the US, which means political appointment?
Quote from: crazy canuck on September 19, 2019, 02:44:30 PM
Quote from: Eddie Teach on September 19, 2019, 02:33:55 PM
Seems to me you are redefining democracy to be something more specific than it is. It just means rule by the people. A democracy doesn't necessarily mean all people will be treated equally.
At its most reductive form, yes. But we are talking about Liberal Democracy here. That does necessarily mean that all people will be treated equally before the law.
What's this "we" stuff?
Quote from: The Brain on September 19, 2019, 03:08:04 PM
Quote from: crazy canuck on September 19, 2019, 02:44:30 PM
Quote from: Eddie Teach on September 19, 2019, 02:33:55 PM
Seems to me you are redefining democracy to be something more specific than it is. It just means rule by the people. A democracy doesn't necessarily mean all people will be treated equally.
At its most reductive form, yes. But we are talking about Liberal Democracy here. That does necessarily mean that all people will be treated equally before the law.
What's this "we" stuff?
The US is a Liberal Democracy, at least it is supposed to be. That is what we are talking about.
Quote from: crazy canuck on September 19, 2019, 03:16:11 PM
Quote from: The Brain on September 19, 2019, 03:08:04 PM
Quote from: crazy canuck on September 19, 2019, 02:44:30 PM
Quote from: Eddie Teach on September 19, 2019, 02:33:55 PM
Seems to me you are redefining democracy to be something more specific than it is. It just means rule by the people. A democracy doesn't necessarily mean all people will be treated equally.
At its most reductive form, yes. But we are talking about Liberal Democracy here. That does necessarily mean that all people will be treated equally before the law.
What's this "we" stuff?
The US is a Liberal Democracy, at least it is supposed to be. That is what we are talking about.
There's no me in we.
You can talk about whatever you want. But Berkut's post was about the Supreme Court of the United States of America.
Quote from: crazy canuck on September 19, 2019, 03:40:33 PM
You can talk about whatever you want. But Berkut's post was about the Supreme Court of the United States of America.
You responded to my post. If you're talking to Berkut please respond to his posts instead of mine.
Quote from: The Brain on September 19, 2019, 03:44:27 PM
Quote from: crazy canuck on September 19, 2019, 03:40:33 PM
You can talk about whatever you want. But Berkut's post was about the Supreme Court of the United States of America.
You responded to my post. If you're talking to Berkut please respond to his posts instead of mine.
I will keep that in mind in future. In future also please let me know when you are talking about something other than the topic that is being discussed.
Quote from: crazy canuck on September 19, 2019, 03:46:46 PM
Quote from: The Brain on September 19, 2019, 03:44:27 PM
Quote from: crazy canuck on September 19, 2019, 03:40:33 PM
You can talk about whatever you want. But Berkut's post was about the Supreme Court of the United States of America.
You responded to my post. If you're talking to Berkut please respond to his posts instead of mine.
I will keep that in mind in future. In future also please let me know when you are talking about something other than the topic that is being discussed.
FWIW I think you actually could read what I wrote.
Quote from: Agelastus on September 19, 2019, 07:23:52 AM
Quote from: Berkut on September 18, 2019, 05:27:19 PM
I think the Dems should absolutely pack the court if they can.
Quote from: jimmy olsen on September 19, 2019, 02:48:10 AM
Pack the court.
So, at the moment the court is 5-4; let's assume the Democrats try to pack the court by adding 2 extra justices making is 5:6. Then the Republicans get in power again and with the example having been made add 2 extra justices themselves making it 7:6; or perhaps a justice retired during the Democrat period and it is 4:7 and to fix this they have to add four new justices making it 8:7.
I am aware that nowhere in the Constitution does it say how many justices there should be on the bench so where does this stop? How long before a constitutional amendment has to be done to fix the number of Justices on the court?
It was a stupid "let the genie out of the bottle" idea when Roosevelt thought it up and I don't see how this is any different now.
Term limits, on the other hand, may be something the USA should explore as an option given the precedent is there with the term limiting of the President.
Arizona's GOP governor just packed the AZ court with 2 extra justices. The genie is already out.
Quote from: Grey Fox on September 19, 2019, 12:47:03 PM
That's not the same thing. The Founding fathers designed a system of government for Christians by Christians. It be unfair to ask them to do anything but as it was their reality.
Many of the Founding Fathers were not Christians. Adams, Jefferson, and Hamilton, for instance, just off the top of my head. I think you actually know far less about this topic than you think.
Hamilton was a Christian. He was a rather moderate one to be sure, and certainly did not like the excesses of religion, but he was a member of his church (but rarely attended). He was active in the churches governance, and on his deathbed asked for final sacrements (which were at first refused because he was dueling, which was a sin).
I think he would describe himself as a Christian anyway.
Now the claim that the Founding Fathers were Christians designing a Christian government for Christians by Christians is a load of bullshit. They went out of there way to make it NOT be that.
Quote from: Grey Fox on September 19, 2019, 11:51:25 AM
Quote from: Valmy on September 19, 2019, 11:48:09 AM
Quote from: Grey Fox on September 19, 2019, 11:45:54 AM
Quote from: Valmy on September 19, 2019, 11:43:28 AM
Quote from: Grey Fox on September 19, 2019, 11:40:12 AM
Because they didn't consider the fact that we would not all have the same religious background?
In what way did they not consider that fact?
I don't know how to prove the absence of something with more than "they didn't". :hmm:
You don't have to prove anything, simply explain WTF you are talking about. Because, after all, they did have differing religious ideas and specifically made a secular government.
:lol:
They didn't anticipate the need for protestant groups to circle the wagon & throw their undying religious faith behind 1 party.
It's not a secular government, it's a christian government.
The president is clearly an atheist who only believes in himself and only goes along with some evangelical initiatives because he likes to oppress people who are different.
Quote from: Berkut on September 19, 2019, 09:50:57 PM
Hamilton was a Christian. He was a rather moderate one to be sure, and certainly did not like the excesses of religion, but he was a member of his church (but rarely attended). He was active in the churches governance, and on his deathbed asked for final sacrements (which were at first refused because he was dueling, which was a sin).
I think he would describe himself as a Christian anyway.
Now the claim that the Founding Fathers were Christians designing a Christian government for Christians by Christians is a load of bullshit. They went out of there way to make it NOT be that.
As it happens a guy named Barton made this argument. The book, called the Jefferson Lies, was considered the "worst history book in print."
There is a short letter written by George Washington to the Hebrew congregation in Newport, which I believe sheds some light on the issue of whether or not The United States was founded to be a government by Christians and for Christians. First the address to Washington by the Hebrew Congregation
Quote from: The Hebrew CongregationThe address reads: "Permit the children of the Stock of Abraham to approach you with the most cordial affection and esteem for your person & merits—and to join with our fellow Citizens in welcoming you to New Port.
"With pleasure we reflect on those days—those days of difficulty, & danger when the God of Israel, who delivered David from the peril of the sword, shielded your head in the day of battle: and we rejoice to think, that the same Spirit who rested in the Bosom of the greatly beloved Daniel enabling him to preside over the Provinces of the Babylonish Empire, rests and ever will rest upon you, enabling you to discharge the arduous duties of Chief Magistrate in these States.
"Deprived as we heretofore have been of the invaluable rights of free Citizens, we now (with a deep sense of gratitude to the Almighty disposer of all events) behold a Government, erected by the Majesty of the People—a Government, which to bigotry gives no sanction, to persecution no assistance—but generously affording to All liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language, equal parts of the great governmental Machine: This so ample and extensive Federal Union whose basis is Philanthropy, Mutual Confidence and Publick Virtue, we cannot but acknowledge to be the work of the Great God, who ruleth in the Armies Of Heaven and among the Inhabitants of the Earth, doing whatever seemeth him good.
"For all the Blessings of civil and religious liberty which we enjoy under an equal and benign administration, we desire to send up our thanks to the Antient of Days, the great preserver of Men—beseeching him, that the Angel who conducted our forefathers through the wilderness into the promised land, may graciously conduct you through all the difficulties and dangers of this mortal life: and, when like Joshua full of days and full of honour, you are gathered to your Fathers, may you be admitted into the Heavenly Paradise to partake of the water of life, and the tree of immortality" (DLC:GW).
And then George Washington's response.
Quote from: George Washington
Gentlemen.
While I receive, with much satisfaction, your Address1 replete with expressions of affection and esteem; I rejoice in the opportunity of assuring you, that I shall always retain a grateful remembrance of the cordial welcome I experienced in my visit to Newport,2 from all classes of Citizens.
The reflection on the days of difficulty and danger which are past is rendered the more sweet, from a consciousness that they are succeeded by days of uncommon prosperity and security. If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good Government, to become a great and a happy people.
The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
It would be inconsistent with the frankness of my character not to avow that I am pleased with your favorable opinion of my Administration, and fervent wishes for my felicity. May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.
https://founders.archives.gov/documents/Washington/05-06-02-0135
Quote from: jimmy olsen on September 19, 2019, 10:03:07 PM
The president is clearly an atheist who only believes in himself
That might be true.
Quoteand only goes along with some evangelical initiatives because he likes to oppress people who are different.
That only reinforces the notion that America is quickly becoming a theology, not only in name this time.
It really doesn't matter if Hassan Rouhani is an atheist who only believes only in himself, the real power are the religious people behind him, the ones with real power.
Quote from: Berkut on September 19, 2019, 09:50:57 PM
Hamilton was a Christian. He was a rather moderate one to be sure, and certainly did not like the excesses of religion, but he was a member of his church (but rarely attended). He was active in the churches governance, and on his deathbed asked for final sacrements (which were at first refused because he was dueling, which was a sin).
I think he would describe himself as a Christian anyway.
Now the claim that the Founding Fathers were Christians designing a Christian government for Christians by Christians is a load of bullshit. They went out of there way to make it NOT be that.
Hamilton rejected (for most of his life; he was religious in his youth and old age) the divinity of Christ. That's kind of the definition of a Christian.
However, as you note, that's moot to the point of the government they were creating.
Quote from: Berkut on September 18, 2019, 04:37:00 PM
There have been several examples in the last 50 years where the right has managed to basically create entirely new law on critical issues by consistently winning the "Who can pack the Supreme Court better" game.
Both sides have been trying to do this, not just the right. It's just that lately the right was better at it (or possibly just luckier).
Quote from: Berkut on September 18, 2019, 04:37:00 PM
Heller invented a new right that never existed before, on the basis of a theme that the NRA had been pushing for years. This was only possible by getting right wing justices on the court willing to overlook the actual law and history in favor of their political ideology and the power behind those who put them there (the NRA support for the Republican Party).
Maybe, but couldn't something similar be said about Roe vs Wade?
Quote from: Ancient Demon on September 20, 2019, 02:04:25 PM
Both sides have been trying to do this, not just the right. It's just that lately the right was better at it (or possibly just luckier).
Yeah they think Bill Clinton and Obama (with his executive orders) just ripped up the Constitution and broke all norms. Thus: WAR!
Or something.
But I know it all started when Bill was President.
As for Roe vs. Wade I have no idea how those issues were looked at way back in those olden days.
Quote from: Ancient Demon on September 20, 2019, 02:04:25 PM
Maybe, but couldn't something similar be said about Roe vs Wade?
There are similarities between the determination in Roe v Wade that Americans had an un-enumerated right to privacy, and the finding of Heller that Americans had a right to armed self-defense, but the differences in judicial reasoning are far more important than the similarities. RvW acknowledges a right that no one really disputed, and was in accordance with precedent. Heller totally reversed precedent and created an enumerated right based on an extraordinarily loose interpretation of the Second Amendment.
Heller would have been far less damaging had its basis been, like RvW, an un-enumerated right. By essentially saying that the Constitution can be interpreted however the court wishes, it makes a mockery of the actual text of the Constitution. It also makes a mockery of precedent.
The funny thing about Heller is that back in the Warren Court days, critics used to accuse the Court of ignoring the letter of the law in favor of "outcome-oriented" jurisprudence.
Heller, although authored by the arch-priest of constitutional literalism and originalism, Justice Scalia, is a perhaps the best example of outcome oriented jurisprudence one can cite.
The Second Amendment is a massive constitutional embarrassment. It's an embarrassment to gun control advocates because it clearly is constitutionalizing some sort of right to possess guns. It's an embarrassment to NRA types because just as clearly it is not an unequivocal personal right in the same sense of the more straightforwardly written rights like speech or religion. That tricksy militia language has to mean something.
The plain language of the Second Amendment suggests that the government can't interfere with the ownership of standard military issue equipment (e.g. an M4 carbine or a standard issue fragmentation grenade) needed by a proper militia force but could freely regulate the ownership and employment of recreational arms. That is a logical reading of the amendment and in fact its one the Supreme Court seemed to adopt in the last major pre-Heller 2nd amendment case (decided in the 1930s). But it makes no sense as policy in the 21st century.
Heller flips the literal logic of the Second Amendment completely on its head in favor of common-sense logic. Military-type weapons aren't covered; "personal defense" weapons are. But no amount of sophistic contortion by Scalia can fit that conclusion into the literal language of the amendment or into 18th century understanding and practice. It's reasoning made to fit into a pre-determined and policy-driven result.