[Prolix]

Originally Posted by Mulder

Only when the laws are clearly unconstitutional should judges over turn legislation. The reason is that you can fix the legislation--you can vote out legislators--you can do nothing with a maverick judge that is substituting his views for that of the legislature. .

Well, I will agree with your quote above. Legislation should be, and is, presumed to be constitutional unless a majority on the Supreme Court believe that it clearly exceeds the bounds of the Constitution. But I still say the Court must not and should not "defer" to Congress in determining whether a law is constitutional. Hypothetically speaking, surely you are not saying that a Supreme Court Justice should give some kind of deference to Congress if Congress passed a law that said (a) citizens are prohibited from bearing arms, and (b) by the way, we have carefully considered this issue, and declare this new law to be constitutional. Are you???

[stormylin]

Originally Posted by Prolix

Mulder, I am very surprised to hear you say this, because I have agreed with many things I have seen you write.

The sole role of the Court, as established by precedent for over 200 years, is to decide whether laws, passed by the States or Congress, are constitutional. The inquiry should be limited to deciding whether a particular law is forbidden or permitted by the Constitution.

The Court serves to protect all or us from Congress or the Executive branch from becomming oppressive, from gaining too much power, from imposing the will of the majority when that violates the founding principles, and from growing beyond the limits set by the constitution. [Don't we want to prevent our Court from becomming a rubber stamp of the wishes of the party in executive power - like the Court of Stalinist era Soviet Union - or many other Courts throughout history and around the world?].

The Court must never feel pressured by public opinion, by Congrsssional opinion, or by Executive opinion. While it is true that the Constitution must be interrpeted in a manner that reflects changing society and technology - the individual justices must bring to the Court their independent judgment, rather than giving deference to Congress to tell them how the Constitution should be interpreted.

Prolix, I am Extremely pleased to have you here!!! I most especially agree with your position that I bolded above.

However, I do not agree that the Constitution must nor ever should be 'interpreted' in a manner that reflects changing society and technology. In fact, I flat out reject this. The Founding Fathers knew that the Constitution would or could need to be revised as society changed. Thus they allowed for changes to the Constitution by Amendment. The only way to change (aka interpret) the Constitution legally by Federal law for any reason, including but not limited to a change in society or technology is by Amendment.

You first statement is completely correct, "the sole role of the court....is to decide whether law...is permitted or forbidden by the Constitution." It can't be both ways, if the court has the right to 'interpret' a law or change it, this conflicts with the fact that the sole role of the court (and the only federal legal authority of the court) is to decide if the law is or isn't Constitutional.

As I have said in the past, The Founding Fathers made it Extremely Difficult to change federal law for a very good reason.

[Mulderator]

Originally Posted by Prolix

Well, I will agree with your quote above. Legislation should be, and is, presumed to be constitutional unless a majority on the Supreme Court believe that it clearly exceeds the bounds of the Constitution. But I still say the Court must not and should not "defer" to Congress in determining whether a law is constitutional. Hypothetically speaking, surely you are not saying that a Supreme Court Justice should give some kind of deference to Congress if Congress passed a law that said (a) citizens are prohibited from bearing arms, and (b) by the way, we have carefully considered this issue, and declare this new law to be constitutional. Are you???

You're not understanding the analysis. First of all, the vast majority of legislators are lawyers--they understand the Constitution very well. They are representing the people and instituting the people's will. Judges need to respect the people's will and defer to that--not to the legislative branch itself--its it the fact they are exercising the will of the people. No judge is above the will of the people. That's why they need to show deference. You're making this into a battle over who understands the Constiution better and that's not it at all.

As an example, in Roe v. Wade the judges decided that the Constitution guarantees a woman the right to abortion, which is ridiculous--nowhere in the Constitution can you find that. This is an example of judges creating rights that never existed in the Constitution--they are substituting their own social views for that of the people. As the article said, a judge can find a way to have the Constitution support his/her position. That's not right. What a judge should do is assume the legislation is Constitutional and honor the will of the people unless it is clearly not constitutional. The only way a judge can do that is to show due deference to the legislature. That doesn't mean he/she rubber stamps every bill, but invalidating the an act of the people should not be done without extreme caution and due deference--that is an axiom of judicial philosophy and as I said, our system would not work properly if judges do not show judicial restraint, otherwise, you have judges making the laws.

The problem is that people have this misconception that the Constitution should be reinterpreted continually and it shouldn't. It laid out only very basic rights which have been expanded exponentially in some areas (i.e., civil rights) and contracted significantly in other areas (i.e., economic rights). It you allow that to happen, the Constitution ceases to be an anchor and is set free to drift on a sea of judicial fiat. That's wrong--that's why judges like Roberts and Scalia and Rhenquist and Alito are better judges in my view--because they don't believe the Constitution should be changed except by Amendment. The founding fathers provided a means to change the Constitution--by Amendment--not by judicial fiat.

[~Candy~]

Originally Posted by linskyjack

I wonder how many Americans could actually name their state assemblyman or senator. Maybe 5%?

Assemblyman next door....so, yup, I know his name, his wife's name.....what car he drives...........and that he's a Democrat

Did you know that Google Earth can tell you that?

[Rollin' Rog]

Originally Posted by Mulder

Actually, that's not Roe v. Wade in a nutshell. If the fetus were considered a person, then clearly abortion would not be permissible under the Constitution. Most right wing judges don't believe a fetus is a "person" under the Constitution.

Again, this shows people's misconception about Roe v. Wade. The real issue in that case is not whether abortion should be legal but who gets to say whether its legal or not and to what extent. I think its pretty clear that the legislature should be making those decisions, not judges. You can see the dilemma in this--judges have to make up rules about when and where and under what circumstances abortion should be permitted. Obviously, no judge in his right mind would hold that an abortion should be legal for a healthy fetus and mother at 9 months. Well, how the hell can judges make these rules? Their not trained to study medical issues and come up with procedural guidelines. The whole thing is way to complicated for judges to be doing.

The reality is that if Roe v. Wade is overturned, its not going to make that much of a difference because most states will still allow abortion. Most will liiely outlaw partial birth abortions, but that's not a high percentage of the abortions anyway.

Reading Roe V. Wade now for the first time, I agree on your interpretation.

The issue for that court turned on the scope given to the "right of privacy" conferred by the 14th ammendment.

Now this will pose an interesting choice for Alito. He seems inclined to accept prior judicial precedents -- and this is one, even if he does not fully agree.

Can states rightfully outlaw abortion on a fetus? The fetus in itself has no rights. The woman has rights and the State has rights. The woman has a right to privacy, but the State has a right to pass laws which may curtail privacy IF it can show that the state, or society is unduly harmed by the exercise of those rights.

This was actually the gist of Alito's decision in the New Jersey Police case involving the bearded Muslims. The Police department may have had a right to forbid beards -- but it failed to show that the beards presented a detriment to performance of their duties.

This same logical burden will befall states which want to forbid abortion of a fetus: they will be required to show that the benefit to society justifies the restriction of the already accepted notion of privacy.

This will be problematic if the fetus is not considered a person. And Alito has accepted that it isn't.

[stormylin]

Originally Posted by Prolix

Well, I will agree with your quote above. Legislation should be, and is, presumed to be constitutional unless a majority on the Supreme Court believe that it clearly exceeds the bounds of the Constitution. But I still say the Court must not and should not "defer" to Congress in determining whether a law is constitutional. Hypothetically speaking, surely you are not saying that a Supreme Court Justice should give some kind of deference to Congress if Congress passed a law that said (a) citizens are prohibited from bearing arms, and (b) by the way, we have carefully considered this issue, and declare this new law to be constitutional. Are you???

On the topic of the Constitutionality of prohibiting citizens from bearing arms the following article from http://www.reason.com/sullum/102805.shtml how Congress abuses their authority and 'tramples' the Constitution. This is exactly why the Constitution does not give Congress or any court in this country any authority to 'interpret' any federal law.



October 28, 2005


Torts Deformed
Congress tramples the Constitution in its rush to block frivolous lawsuits
Jacob Sullum



When the House of Representatives voted to prohibit lawsuits that blame gun manufacturers for crimes committed with their products, only four Republicans opposed the bill. Three of them were reliable supporters of gun control, but the fourth, Ron Paul of Texas, is a self-described "firm believer in the Second Amendment" who has received high ratings from the National Rifle Association and Gun Owners of America.

What led Paul to join his anti-gun colleagues in voting against the Protection of Lawful Commerce in Arms Act? The same thing that led to accolades from groups that defend the right to keep and bear arms: his respect for the Constitution.

As Paul explained in a 2003 speech, he is unambiguously opposed to lawsuits that demand compensation from the firearms industry for the damage caused by gun crimes. But he concluded that federal pre-emption of such suits cannot be reconciled with the Constitution's limits on congressional power, which leave the writing of tort law to the states.

Paul seems to be the only member of Congress who took this position on the bill, which President Bush signed into law on Wednesday. In fact, it's so rare for legislators to draw a distinction between their personal policy preferences and their constitutional responsibilities that Paul's stand must seem quaint, if not downright puzzling, to most Americans.

The strongest argument in favor of federal limits on gun lawsuits was that legal costs and the threat of a ruinous judgment might push gun makers into a settlement that included nationwide restrictions on sales, impinging on the authority of state legislatures and the right to armed self-defense. But this danger never materialized.

Of more than 30 government-backed lawsuits filed since 1998, all but a few were dismissed before Congress acted, at which point 33 state legislatures had passed similar laws. In short, there was no constitutional emergency to justify congressional meddling in state tort law--a fact reflected in recent statements from the leading supporters of federal pre-emption.

Press releases from the NRA and the National Shooting Sports Foundation, the main industry group, said the new law will foil frivolous lawsuits, protect law-abiding businesses, and save American jobs. There was no mention of the Constitution or the Second Amendment.

...."

"....How can anyone who claims to respect the Constitution sign onto such self-serving nonsense? Bob Barr, the former Republican congressman from Georgia, says opposing federal pre-emption of gun lawsuits on constitutional grounds amounts to "unilateral disarmament." Yet failing to do so amounts to dismantling our defenses against those who believe Congress can and should bend the Constitution to its will."

[Mulderator]

Originally Posted by Rollin' Rog

Reading Roe V. Wade now for the first time, I agree on your interpretation.

The issue for that court turned on the scope given to the "right of privacy" conferred by the 14th ammendment.

Now this will pose an interesting choice for Alito. He seems inclined to accept prior judicial precedents -- and this is one, even if he does not fully agree.

Can states rightfully outlaw abortion on a fetus? The fetus in itself has no rights. The woman has rights and the State has rights. The woman has a right to privacy, but the State has a right to pass laws which may curtail privacy IF it can show that the state, or society is unduly harmed by the exercise of those rights.

This was actually the gist of Alito's decision in the New Jersey Police case involving the bearded Muslims. The Police department may have had a right to forbid beards -- but it failed to show that the beards presented a detriment to performance of their duties.

This same logical burden will befall states which want to forbid abortion of a fetus: they will be required to show that the benefit to society justifies the restriction of the already accepted notion of privacy.

This will be problematic if the fetus is not considered a person. And Alito has accepted that it isn't.

That's more of a left slanted intepretation and certainly accurate from that perspective. However, there is also much debate about this "right to privacy" which also does not show up in the Constitution and is pretty much an illusion. It comes down to a balancing of your right to privacy vs. the government right to intrude on it. An unborn baby or fetus or whatever you want to call it is like nothing else--there is a huge interest in what will become a citizen of the state if the pregnancy is not interrupted.

And consider that if you kill a mother and fetus you can be charged with double homicide in many states, including California. How the hell do they square that with a fetus having no rights!

What it really comes down to is a matter or morality and common sense, which is why I think the courts have no business in it. I think the states will get it right eventually through the legislature. But historically, the left have used activist judges to push social agendas they can't get passed at the ballot box and that's just not right--its an abuse of the system even though I agree with some of the social changes, like the right to abortion. Point is its not for me to say nor is it for judges.

[stormylin]

Stated by Mulder: Actually, that's not Roe v. Wade in a nutshell. If the fetus were considered a person, then clearly abortion would not be permissible under the Constitution. Most right wing judges don't believe a fetus is a "person" under the Constitution.

Technically you can not be a 'person' unless you can live and breath without a host.

[Mulderator]

Originally Posted by stormylin

This is exactly why the Constitution does not give Congress or any court in this country any authority to 'interpret' any federal law.

I think Democrats and Republicans alike would be shocked to learn that the Constitution does not give the courts the right to "interpret" federal law. Under the Constitution as I know it, its the court's job to interpret all laws, federal and state.

[bassetman]

Originally Posted by Rollin' Rog

Reading Roe V. Wade now for the first time, I agree on your interpretation.

The issue for that court turned on the scope given to the "right of privacy" conferred by the 14th ammendment.

Now this will pose an interesting choice for Alito. He seems inclined to accept prior judicial precedents -- and this is one, even if he does not fully agree.

Can states rightfully outlaw abortion on a fetus? The fetus in itself has no rights. The woman has rights and the State has rights. The woman has a right to privacy, but the State has a right to pass laws which may curtail privacy IF it can show that the state, or society is unduly harmed by the exercise of those rights.

This was actually the gist of Alito's decision in the New Jersey Police case involving the bearded Muslims. The Police department may have had a right to forbid beards -- but it failed to show that the beards presented a detriment to performance of their duties.

This same logical burden will befall states which want to forbid abortion of a fetus: they will be required to show that the benefit to society justifies the restriction of the already accepted notion of privacy.

This will be problematic if the fetus is not considered a person. And Alito has accepted that it isn't.

Actually Rog, I was told States cannot further restrict rights in the Constitution, only expand them!

[Rollin' Rog]

I'm not aware of anyone being convicted of a homicide here for death of a true fetus... but if they were, that certainly would be a contradiction.

Whether my slant is left or not, is less the question than whether a state can make a case for harm to society based on the loss of a true fetus. Given Alito's prior rulings I don't think is going to leave this burden of proof to speculation. The state will have to prove the harm. I don't see how it can be done. A child not wanted is likely to be a greater burden on society than a fetus aborted.

[linskyjack]

Originally Posted by AcaCandy

Assemblyman next door....so, yup, I know his name, his wife's name.....what car he drives...........and that he's a Democrat

Did you know that Google Earth can tell you that?

LOL--Now Candy, no one has an excuss anymore for not knowing who the heck is responsible for all the nonsense!

[Prolix]

Originally Posted by Mulder

You're not understanding the analysis. First of all, the vast majority of legislators are lawyers--they understand the Constitution very well. They are representing the people and instituting the people's will. Judges need to respect the people's will and defer to that--not to the legislative branch itself--its it the fact they are exercising the will of the people. No judge is above the will of the people. That's why they need to show deference. You're making this into a battle over who understands the Constiution better and that's not it at all.

As an example, in Roe v. Wade the judges decided that the Constitution guarantees a woman the right to abortion, which is ridiculous--nowhere in the Constitution can you find that. This is an example of judges creating rights that never existed in the Constitution--they are substituting their own social views for that of the people. As the article said, a judge can find a way to have the Constitution support his/her position. That's not right. What a judge should do is assume the legislation is Constitutional and honor the will of the people unless it is clearly not constitutional. The only way a judge can do that is to show due deference to the legislature. That doesn't mean he/she rubber stamps every bill, but invalidating the an act of the people should not be done without extreme caution and due deference--that is an axiom of judicial philosophy and as I said, our system would not work properly if judges do not show judicial restraint, otherwise, you have judges making the laws.

The problem is that people have this misconception that the Constitution should be reinterpreted continually and it shouldn't. It laid out only very basic rights which have been expanded exponentially in some areas (i.e., civil rights) and contracted significantly in other areas (i.e., economic rights). It you allow that to happen, the Constitution ceases to be an anchor and is set free to drift on a sea of judicial fiat. That's wrong--that's why judges like Roberts and Scalia and Rhenquist and Alito are better judges in my view--because they don't believe the Constitution should be changed except by Amendment. The founding fathers provided a means to change the Constitution--by Amendment--not by judicial fiat.

Well, I will have to digest that for a while - but I can't say that I agree with all of it. I suppose you can have the last word on that issue. After all, I have seen it written that Mulder is always right!

[bassetman]

Originally Posted by Prolix

Well, I will have to digest that for a while - but I can't say that I agree with all of it. I suppose you can have the last word on that issue. After all, I have seen it written that Mulder is always right!

Mulder and GB, like the Pope are infallible!

Except when they disagree with each other!

[Mulderator]

Originally Posted by bassetman

Actually Rog, I was told States cannot further restrict rights in the Constitution, only expand them!

I think what you mean is that states cannot offer less protection than what is afforded by the Constitution but can offer more--which they often do. As an example, here in California, gays are considered a protected class that cannot be discriminated against while the same is not true under federal law. But obviously you have to first decide what protections are afforded by the Constitution. The problem is that people, primarily liberals, want to turn the Constitution into something its not, and that is a device for social justice. The Constitution was never designed nor should it be used to provide for social and economic equality. In fact, there was no provision to tax the income of citizens in the Consitution, which is the main vehicle liberals use in attempts to redistribute wealth. In fact, I have no doubt the Constitution would never have been ratified by the states if they saw how it was going to turn out in terms of the scope of the federal government.