Lots of Judicial Activism?

wroughtn_harv · Jul 2, 2002

Let me clarify what I meant by "Judicial Activism"... Basically I meant actively changing things that had been established. For example, the death penalty (federal), which had been found "constitutional" in the past, has now been found not to be.

That is the beauty of our system. Wrongs can be righted without a violent revolution as knowledge and morals evolve to higher standards.

I believe the criteria used by the Supreme Court in their latest ruling on the death penalty was an example of that. When faced with the issue just a couple of decades ago it was obvious that the majority of the states were for the status quo death penalty laws. But this time they were able to look and see the majority of the states had either suspended or removed the death penalty as a viable punishment.

And using the same logic, majority opinion, they modified their position.

Isn't it great how it works?

I mean look around. Other countries without our self correcting system have to rely on revolutions.

Anonymous Poster · Jul 2, 2002

If ever you want to see a demonstration of the ability of certain government agents to deprive a person of his liberty and property, do the following; Buy an airplane ticket at the airport a couple hours before the flight with cash, carrying just 1 piece of luggage containing a large sum of cash.
It won't matter that you are headed out to an auction to buy a piece of equipment and the auctioneer will only take cash or certified funds from out of state bidders, or that you are planning to drive the rig you intend to buy home.
I'll give you 9 to 1 odds some men in cheap suits will meet you before you get on the plane, or as soon as you get off, and releive you of the cash you are carrying. It can, of course, be gotten back, in a few years of litigation, after you post a bond equal to the cash you were releived of, and PROVE to the Court's satisfaction you were engaged in a legitimate business transaction.

RanchMan · Jul 2, 2002

rmorgan --

"... was a little too tongue-in-cheek ..."

Eeep! sorry... caught the "obvious" stuff but missed the "dry" part.... /w3tcompact/icons/smile.gif

RanchMan · Jul 3, 2002

Wroughtn_Harv -

Again, although the intent of my original post wasn’t really to go deep in to any of the particular decisions I brought up as a examples, your last message intrigued me and peaked my curiosity, so I’ll go ahead and comment.

Wrongs can be righted without a violent revolution as knowledge and morals evolve to higher standards.

Hmmm. /w3tcompact/icons/hmm.gif Interesting statement. I can see where knowledge can "evolve", but don't concur on the morals part. (Many may argue that a lot of the "morals" of today have de-evolved from what they were in the past.) Additionally, I'd argue while "wrongs can be righted", "rights can be wronged" as well.

"When faced with the issue just a couple of decades ago it was obvious that the majority of the states were for the status quo death penalty laws. But this time they were able to look and see the majority of the states had either suspended or removed the death penalty as a viable punishment."

Hmmm. /w3tcompact/icons/hmm.gif I'm a bit confused on this one. From my understanding, 38 of the 50 states (or 76%) currently have the death penalty "on the books" as a "viable punishment." (please let me know if I have this incorrect.) Granted some states (such as mine, Texas) are a more zealous in pursuing it, but I don't understand where the "non-DP majority" came from.

And using the same logic, majority opinion, they modified their position.

Okay, this is where I really need help. I **thought** I knew where you were coming from, but I've become pretty confused.

Based on the logic you stated, earlier on you said that "Wrongs can be righted...", meaning things that were "truly wrong" can be changed due to "standards evolution." So some things in the past, although they seemed “right” at the time, were really "wrong."

Now, going a little further to your other statements, because a "majority" (contested assumption) of the states have "evolved" to hold a "higher standard" with regards to the D.P., the court saw this and has modified their position on it in order to reflect the new "majority opinion" as held by the states. (e.g. the true “right & correct” has now been established.)

If I interpreted your statements correctly, this seems to basically say that the majority is always "right" and the minority is always "wrong" because at any given point in time, the majority reflect the most up to date "standards evolution" (i.e. the states in the D.P. case)

/w3tcompact/icons/hmm.gif Sooo, this seems to advocate "majority rule". But this position goes against the ruling in CA regarding the pledge, ergo, the court in California should not have ruled the way it did because it should have followed the same "majority rule" postulation as found with in the D.P. ruling.

If the court changes back to say that no, the D.P. is “just” in a few years due to further “evolved standards” (not because of a “mistake” by an individual on the court), then the most recent ruling was “really wrong” and the earlier ruling was “really right” (albeit for potentially incorrect “standards” of the past) This seems to go against to your very first point of “standards evolution” (in addition to not being within the spirit of some of your other posts.)

Basically, I can't seem to resolve what I see as a logical recursion. Either I’ve misunderstood what you meant or there are issues with the "givens" in your “proof” as they seem to contradict one another. HELP!!! /w3tcompact/icons/crazy.gif

Other countries without our self correcting system have to rely on revolutions Very true indeed!

wroughtn_harv · Jul 3, 2002

Hmmm. I'm a bit confused on this one. From my understanding, 38 of the 50 states (or 76%) currently have the death penalty "on the books" as a "viable punishment." (please let me know if I have this incorrect.) Granted some states (such as mine, Texas) are a more zealous in pursuing it, but I don't understand where the "non-DP majority" came from.

In that Atkins v. Virginia ruling, a court that, understandably, hates to appear indecisive took the extraordinary step of declaring that a punishment that it had upheld just 13 years ago is now unconstitutionally "cruel and unusual." 13 years is a mere blink of the eye compared with past times when the court has taken the rare step of reversing itself.

What's changed since 1989? The meaning of "cruel and unusual," according to Justice John Paul Stevens. Writing for the majority, he looked beyond the court's marble walls and found a new "consensus" that capital punishment of the retarded is at odds with "the evolving standards of decency that mark the progress of a maturing society."

Stevens' opinion stressed that the number of states outlawing such executions had jumped from 2 to 18 (12 others -- including Michigan-- bar all capital punishment). The court also saw a consensus in American public opinion polls; professional groups such as the American Psychological Association; legislators; lower court judges; religious groups; and the European Union. (this quote came from <A target="_blank" HREF=http://web.cis.smu.edu/~deathpen/updates.html>here</A>)

Hmmm. Interesting statement. I can see where knowledge can "evolve", but don't concur on the morals part. (Many may argue that a lot of the "morals" of today have de-evolved from what they were in the past.) Additionally, I'd argue while "wrongs can be righted", "rights can be wronged" as well.

First thing I have to agree about rights being wronged. I mean can you believe that one of the first things that Dubya did when he got into office was sabotage our freedom of information act just in time to protect the records of the Reagan administration from the researchers? And not only did he do that he protected the Vice Presidential papers too! One has to wonder if this is to protect daddy's doings from the public eye????????

I'm sure eventually a law will come into place to give us back our right to get information about our government's behind the scene shenaniganing. But it is sickening to see an administration blowing about less government meaning a hidden from view government.

What I'd like you to do if you can would be to list those morals you think have declined. Just a simple list of what and where you think we're failing today that we weren't in the past.

If I interpreted your statements correctly, this seems to basically say that the majority is always "right" and the minority is always "wrong" because at any given point in time, the majority reflect the most up to date "standards evolution" (i.e. the states in the D.P. case)

Oh I don't think for a minute the majority has been right all the time. The majority hasn't been right from day one in the way they've treated minorities. Not in 1776 nor in 2002 have we got that right yet. We're doing better, but still not right.

We can look back at 1954 and see where lives were ruined just because there was an irrational fear of communism sweeping the country. If you weren't willing to stand up and que the line about just what an American was per the expected parameters your life was ruined financially and sometimes socially.

Something completely against all the principles of this great country btw. We're still paying for that period btw. This very thread is an example of that.

I mean think about it. The greatest generation fought the War of wars against the greatest enemy mankind has ever known and they did all growing up and fighting under a simple pledge of allegience affirming liberty and justice for all. Yet some weak minded individuals who chances are weren't in the trenches decided that wasn't enough. They wanted a further affirmation of belief in a god to prove you weren't a communist at heart.

A whole generation gives their best and brightest to save the world and that isn't enough nine years later.

Basically, I can't seem to resolve what I see as a logical recursion. Either I’ve misunderstood what you meant or there are issues with the "givens" in your “proof” as they seem to contradict one another. HELP!!!

Man I'm with you on this one. It's really hard to understand when you look at things as they appear to be instead of the way they are.

rmorgan · Jul 3, 2002

Ranchman--

A quick final thought on this one, although I suspect I'm not saying anything you don't know. The cruel-and-unusual standard in the eighth amendment has been held for years to require examination of "evolving standards of decency." This in turn has been an inherently majoritarian inquiry--"do most people still think it is decent to hang? --to tar and feather? --to use the electric chair?" or has society, i.e. the majority, "evolved" past that punishment? Of course, the reason this makes sense is that a punishment must be not only cruel, but also unusual. If everybody's doing it, it ain't.

On the other hand, the Washington State (not California) judge who wrote the majority opinion on the pledge was applying the first amendment, the history of which is precisely to protect the minority, whether religious or political, from the majority. So, you nailed it on the head: Majority views are relevant to the death-penalty cases, and irrelevant to the freedom-of-speech/religion cases. But that's not necessarily activism, as in all these cases judges are applying principles and precedents that have beeen around for decades or longer.

RanchMan · Jul 3, 2002

Wroughtn_harv -

Although your latest message helps to confirm what I believed were the values you hold close, I'm still confused on the logic. I also think that there were a couple of "crossed wires" regarding the death penalty case.

...outlawing such executions had jumped from 2 to 18...

Based on this and the nature of Atkins vs. Virginia of June 20th (which basically says you can't execute the mentally retarded), I understand where you are coming from, but the problem was that I was actually talking about a different recent ruling. Namely, the ruling that came out from a N.Y. judge on July 1st, which said all executions are unconstitutional. Hence, I still currently believe that 76% of states have the D.P. as a "viable punishment", although I'll concur that the state's statutes vary as to when it can be used. So, for me at least, the quote you cited doesn't "fix" the logical confusion I spoke of.

BTW, here's a link to the case I was talking about...
<A target="_blank" HREF=http://www.foxnews.com/story/0,2933,56681,00.html>D.P. unconstitutional</A>

...Dubya did...was sabotage our freedom of information act just in time to protect the records of the Reagan administration from the researchers?

Well, I'll agree that sometimes "the powerful" do things for "unjust" reasons. But on the other side of the coin, the "researchers" you cite may not just be those in academia, simply after the "quest for knowledge."

Where you see someone taking away freedoms and committing subterfuge in order to protect their family, others may believe that there may be hidden issues that could deal with issues of national security. It all goes back to an individual's opinion on having an "absolute right" to know things about our government. For example, plenty of folks are curious about the military's "black projects" but those secrets won't be revealed due to national security issues. (You could parallel the "absolute right" part to the whole "shouting fire in a theater" example.)

I'm not saying I know one way or the other on this particular incident, nor am I advocating saying "If the govt. wants to keep it secret, fine by me!" What I am saying is that just because something is kept secret doesn't necessarily mean that it is "evil" or "unjust."

What I'd like you to do if you can would be to list those morals you think have declined. 

/w3tcompact/icons/shocked.gif Wow! Well, although I'm sure your intentions weren't meant to be invasive but to simply continue the discussion, I'll decline this invitation. Don't get me wrong, I'm not ashamed of my beliefs nor do I always keep them to myself. This being said, there are a couple of reasons I'll decline, namely their controversial nature may invoke very passionate responses which could lead down a path I'd rather not take. I really don't want to offend anyone here, and some of my views, based on their nature, would surely do that. I guess it all boils down to my statements earlier in this thread that I really didn't start it to "make trouble."

I will say this though - although stereotyping can be pretty dangerous at times, I'm sure that if you apply it to me you may be able to guess most of my views based on past posts and hobbies as are in my profile. I have some beliefs that would probably surprise you because they seem to run contrary to such an overall "stereotypical individual" like myself, but rest assured, I have found a logical congruence between them that I'm comfortable with.

Oh I don't think for a minute the majority has been right all the time.

I didn't think you did, hence my question with your "proof" of the last message. BTW, I concur on this point.

Man I'm with you on this one. It's really hard to understand when you look at things as they appear to be instead of the way they are.

/w3tcompact/icons/hmm.gif Hmmm. Not quite sure how to interpret this one. It comes across (to me at least) as a "dig" on me implying that I am focused on appearances and not "truisms" or "facts" - somehow I'm less learned than you. BUT then again, I guess it could simply be some dry humor, although I have to admit, if this is the case, I don't really "get it." I guess I'll just drop this issue...

Although your reply does seem to reaffirm what I believed to be your beliefs (based on your other posts), I have to admit, it really didn't help me understand the logic of your argument. If you want to take another shot at it, that’s cool, but if not, that's O.K. too.

wroughtn_harv · Jul 3, 2002

Lunchtime Ranchhand,

The deal with the closing of the open records is not about national security. It's about public access to public business.

We, you and me, elect people to public office with the understanding that they will work in our behalf. The way we assure ourselves of their sincerity is with the knowledge by them and us that their work is or will be transparent.

To change the law just in time to sabotage public scrutiny of one of the most controversial times in our history is suspect at best.

The reason I asked you to be specific about your complaints about the times is two fold. One it gives us a chance to help you understand them /w3tcompact/icons/smile.gif. And two, chances are your complaints have a lot more to do with religion than government.

The one, excusing present company you and me, that I like best is when people complain about kids today. Doh! Who raised the kids that are raising these brats? We've seen the enemy and the enemy is us. /w3tcompact/icons/laugh.gif

Another common complaint is about morality in our society. Again, I say let's grab the mirror and hold it firmly in front of our face and stare deep into the eyes of the problem.

Of course the epitomy of wishfull thinking is wanting to get religion into government to correct a morality problem. All we have to do is look where religion is in government to see that it doesn't work, excluding the Vatican of course.

It is interesting how we want to run to nationalism and religion for relief from living in a complicated world.

And on the deal with the death penalty it's obvious we were talking apples and oranges not wanting to make a new soft drink.

As for the learned judges who make controversial decisions we need to sit back and thank our lucky stars for a couple of things. One of course would be that there are judges who will row against the flow if they see an injustice from their perspective. And two would be that we have such a wonderful system to handle these decisions with an appeal process that works ninety nine point nine percent of the time. Too bad it had to be an election question when it failed. Sorta like having a flat the first and only time you lend out your spare.

wroughtn_harv · Jul 3, 2002

Ranchman,

You said, "Although your latest message helps to confirm what I believed were the values you hold close,"

I find that statement intriguing to say the least.

Let me help you out with a story you might appreciate.

One of my best friends is an ordained baptist minister, gawd help us all. And there used to be this old couple next to the shop that were like second parents to me.

One day she calls and wants to get something clarified. She tells me the bud that's the preacher had told her I was an atheist.

I told her I was for a fact.

She told me straight up front that couldn't be. Because I was the most christian man she knew.

You see my values and morals have nothing to do with my faith. And I am a believer. Probably one of the most believing souls that ever lived. I just hang that belief feather on as close a tangible tree as I can. It looks good there. I do have to watch it close though. Some bird is always wanting to feather it's nest.

BTW that event had no kind of influence on my bud the preacher and my relationship. We have some great discussions still and often. And like a true friend he calls on me when he's in need. And of course for me there is the comfort in knowing that he's there for me.

PitbullMidwest · Jul 3, 2002

morals evolve to higher standards

Morals do not evolve, they are the same now as in the beginning. Murder is as immoral now as when Cain slew Abel.

Man attempts to cheat the hangman though "situational morality". Creating levels of moral behavior that is exceptable to society. This denies justice to the one who needs it most, the victim.

My.02 cents worth