Lots of Judicial Activism?

RanchMan · Jul 3, 2002

Rmorgan -

A very interesting argument indeed!

The first time I read it I thought "this makes a lot of sense!" but had a "gut" feeling that I was missing something because I still "felt" there was a logical problem in play, I just couldn't "put my finger on it." /w3tcompact/icons/hmm.gif

I finally figured out what bothered me... Okay, here goes...

Step 1

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Ok, let's accept the definition of "If everybody's doing it, it ain't. (unusual or cruel)."

Going back to the case of the D.P. and retardation, as was cited, the law was changed because the majority of states now do not accept execution of the mentally retarded as acceptable due to "evolved" standards.

So, by definition, the current "belief of the day" has the "winning hand" here.

Ok, so in Step 1 we have said that:
(a) The views of the majority are "correct" based on "evolved standards"
(b) "correct" views should be implemented.

Therefore:
(c) The views of the majority should be implemented with the regards to the death penalty.

Step 2

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

Ok, so although I don't see anything expressly in the amendment itself about "protecting a minority", I can see where someone could see an implied protection, so let's go with the premise that it does just that, protect a minority view. I also don't see any limitation on the type of view held, and since nobody implied such a limitation, I'll assume this protection applies to all beliefs.

Now, if we agree that the court didn't expressly say that the individual belief in God was "correct" or "incorrect", what it did do was establish that even though a majority of people in the country may be opposed to the ruling, it doesn't matter. The majority must not be allowed to say the pledge in schools because it tramples over the minority view. (I'll ignore the whole "...prohibiting the free exercise thereof..." issue.)

Ok, so in Step 2 we basically have the following:
(x) The minority viewpoint may be "correct" or "incorrect"

The minority view must be protected regardless of (x).

Therefore:
(z) When the majority view is in direct conflict the minority view (e.g. they are mutually exclusive), the minority view must be implemented in order to protect it.

Step 3

Okay, coming down the home stretch here... /w3tcompact/icons/smile.gif This is where we try to fit Step 1 and Step 2 together. Basically, the way I see it, they are in conflict with one another.

If the majority view is that "the death penalty should be revoked for the mentally retarded", then it MUST be revoked because:

(a) The views of the majority are "correct" based on "evolved standards."
(b) "correct" views should be implemented.
(c) The views of the majority should be implemented with the regards to the death penalty.

But we have a problem. If the minority view is that "the death penalty should be kept for the mentally retarded", (a mutually exclusive view - you can't execute and not execute someone), the D.P. for the retarded MUST be kept in place because:

(x) The minority viewpoint may be "correct" or "incorrect"

The minority view must be protected regardless of (x).
(z) When the majority view is in direct conflict the minority view (e.g. they are mutually exclusive), the minority view must be implemented in order to protect it.

Here are the conflicts I see.
(b) "correct" views should be implemented. - conflicts with y -
(c) The views of the majority should be implemented with the regards to the death penalty.- conflicts with x & z -

Of course, you could turn this whole thing around use the pledge as the main point instead of the D.P., but it would illustrate the same issue in logic - just another way to do it.

I guess for me at least, I don't see how the rulings can both be "right" based on what I believe the arguments have been on this thread to date. Again, let me reiterate, I am not necessarily advocating any particular position one way or the other on any of these issues - just trying to understand the thinking processes of others.


But that's not necessarily activism, as in all these cases judges are applying principles and precedents that have been around for decades or longer. 

Well, I understand your point, but I personally still see a lot of activism. I think this is because of the definition I am using (i.e. actively changing things <meaning laws, traditions, activities, practices, etc.> that had been established) Although precedents may have been "long established", they are commonly used as tools to effect change in current "things" (such as laws.) This changing of current laws by the courts is what I was refereing to as "activism" in this thread, even if the tools that affect this change are "decades old." (I have some opinions on precedents, but I think I posted them in the Pledge thread). All perspective I suppose.

Going back to my original post, I guess I'll put you in the "Don't see a lot" column. /w3tcompact/icons/smile.gif

RanchMan · Jul 3, 2002

Wroughtn_harv -

The deal with the closing of the open records is not about national security. It's about public access to public business.
Again, let me restate. "I'm not saying I know one way or the other on this particular incident" The problem I have with your above statement is it is impossible to prove, by definition. How can you say, with certainty as you imply, that it is not about national security??? (there are lots of aspects of N.S. other than troops & bombs)

By definition you can't know. You may suspect, but there is no way of you knowing for sure. I guess it boils down to me having an issue with blanket statements that offer no proof. I'm not saying there couldn't be a "skunk under the house" - I'm just saying your nose could be deceiving you.

"...we assure ourselves...that their work is or will be transparent."
/w3tcompact/icons/hmm.gif Hmmmm. What I see as an idyllic view of the world. You may indeed believe this, I do not. As curious as I am at times, I am under no guise that politicians (or anyone in the world for that matter) will be transparent in all issues. Sure, I *hope* that those I vote for are sincere and hold the same values as I do, but I know that there are secrets on all sorts of subjects I will never know. I accept that this is done (not always, but often) for good reasons.

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. My personal belief is that there were far more "controversial times" in our nation's history than the 80's...

One it gives us a chance to help you understand them. And two, chances are your complaints have a lot more to do with religion than government.
I'll take the first sentence as a tongue-n-cheek "funny", but, on a more serious reply, I actually have gone through such an excercise years ago back in my idealistic college days. I do continually re-examine my beliefs from time-to-time, but feel like I "understand" them fine for now. Regardless, my responses are causing me to force out more of them than I'd really prefer, so it looks like you will get your wish (to a small degree.)

As to your second sentence, well, I hate to tell you, but you're way off here. I'm not denying that I do have religious convictions, but what I have been "complaining" about is that a lot of statements get thrown out with no hard evidence or what I can see as a logical thought process. I'm no mathematician, but if one wants to make their case, I'm a big believer in following a logical path to get to an end. I just haven't seen that as much as I like so far within this thread.

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.
Accepting the "mirror" comment, (and the kid-o one too), the question is who is to blame? "Ourselves"? - /w3tcompact/icons/hmm.gif who within "ourselves"? Seems to me like you're saying "we're all to blame." If so, I don't concur. I think a lot of our problems go back to my complaint about "Do Gooders" as I posted in the Pledge thread.

I also see a logical problem with your statement. If the majority of society believes "X" today, how did they get there?

1) If we say that "we" believed "X" today and "X" is "bad",
2) "Yesterday" was better because "we" believed "Y" then
3) that implies a fundamental shift in societal (majority) beliefs.

So, how did this minority "good" view of "yesterday" ("Y") become the majority "bad" view of "today" ("X")???

/w3tcompact/icons/hmm.gif See my opinions on "judicial activism"..... /w3tcompact/icons/crazy.gif

Of course the epitomy of wishful thinking is wanting to get religion into government to correct a morality problem. For some, perhaps, but don't lump me in there. I don't believe that my opinion on the Pledge or keeping existing references to God advocate such an introduction. (my belief/perspective)

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.
 I understand that we were discussing 2 different court cases that dealt with the D.P., but I'm still confused on the logic you used in making your point.

One of course would be that there are judges who will row against the flow if they see an injustice from their perspective Although a generally admirable quality in people, just because someone "bucks the status quo" doesn't make them "right".

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 Many would argue that your statistics are "way off" and that what you cite as a "failure of the system" was actually a "success."

rmorgan · Jul 3, 2002

Ranchman--

Violating my pledge of "last post in this thread," you can put me in the "haven't seen any since Thurgood Marshall died" column!!!/w3tcompact/icons/smile.gif

RanchMan · Jul 3, 2002

/w3tcompact/icons/smile.gif

RanchMan · Jul 4, 2002

Wroughtn_harv -

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.

In an unusual move for me, I'll try to be succinct.

Basically, what I was trying to say was that your past messages have helped to paint a portrait of "you" as to your beliefs, convictions, how you see the world, and what you would like it to be. (this doesn't apply to you exclusively - it applies to anyone who posts here as they are "expressing themselves" to one degree or another, myself included.)

However, that being said, one of your messages seemed to go "against the grain" as to the "portrait of you" I was painting in my mind, hence my initial inquiry for you to clarify. Your follow up messages merely helped to "confirm" what I believed was your position prior to the message in question.

Hope this clarifies what I meant...

Wingnut · Jul 4, 2002

I've stayed out of this one ... partly because I wasn't near my computer for the first part ... and partly because it was staying extremely civil and I'm always afraid my strident views would fan the flames.
All I'm going to say is that I enjoyed most of your "arguments", Harv .... but you said enough in the previous message to give me a pretty clear picture of how open you are to any other side of an disagreement. Therefore you will disagree with or ignore everything I say .... but we still have this gloriously free country (and a pretty darned cool webmeister!).
I'll say this as one who has looked at all this from outside ... as I was free of the incredibly biased American press when most of it happened. First of all, your comment about the McCarthy era and the way it was phrased made me wonder ... since anyone who's really studied (beyond being against it just because they're intensely liberal) the era and the end of the cold war knows that there were - indeed - incredible efforts by the communists (Soviet and American) to subvert our country.
And the comment about the court decision that determined an election pretty well defined you too. Actually, I felt pretty well the same way, again - from outside - since I have no vote, about the court .... but that would be the illegal activities of the decidedly liberal/democrat Supreme Court in Florida that TRIED to steal the election. Do you only support the court when you agree with it?
Sorry ... not trying to break the civil mood ... I just have a real burr under my saddle about people who feel their view is fact.
One final question ... since it has been your contention that the court has been following precedent and is therefore correct. Where did the original precedent come from? A court decision based on INTERPRETATION of the constitution, right? Just like Roe vs. Wade. WHY, WHY, WHY does the document need to be INTERPRETED? Is it all parables like the bible??
Personally, I think it reads pretty clearly.
The state (you know, that one that is not supposed to interfere with state rights or tax the populace) is not supposed to establish or support an official religion. That's just before the one that says citizens need to be armed so that a liberal government can't take away their rights. I'm not sure why those need to be interpreted .... except by people who feel a need to take away either of those rights. Does it actually say (interpret for me please) that the state needs to legislate AGAINST any religion?
And where is it written that the third branch is allowed to MAKE law? It's my understanding that they're supposed to enforce the existing laws ... even the ones that they don't agree with.

OK ... I've read it twice, removed a few things that might have been deemed "unnecessary" ... and waitied a few minutes ... so I guess I'll either post this or hit the kill button ... ahh, what the heck

Chuck52 · Jul 4, 2002

Wingnut,

I was wondering where you were.

Sorry ... not trying to break the civil mood ... I just have a real burr under my saddle about people who feel their view is fact.

No doubt you mean by this that you wish everyone was as open to opposing views as are you. It seems to me that most folks tend to view their opinions as having a basis in fact. I certainly do. As to the Constitution needing interpretation, I would ask that you consider that the writers, while clearly superior beings, could not be expected to forsee all possible societal and technological changes for the next, say, 200 years. One of the favorite rights quoted in these discussions has always been the right to bear arms. I support that right, though I do not hunt....I may take it up if the ^%$*&^ deer doesn't leave my beans alone. However, since the authors of that right saw single shot muzzle loaders as the height of killing efficiency, one must wonder what they would think about, say, a personal nuclear device. They might have supported private ownership of cannons....I don't know, do you? How do you think they'd feel about personal ownership of a fully armed modern tank? Does this not call for some judicial interpretation?

Chuck

Ozarker · Jul 5, 2002

I don't believe it calls for much interpretation at all. The militia was seen as armed individuals being prepared to performed the duties of an individual soldier when called. The Constitution also allowed for the forming and arming or an army when necessary. It treats the militia and the Army as separate things.

So I beleive it is clear that the arms one has the right to keep and bear are those that the individual soldier would need to perform the duties of an infantryman/militiaman. That would eliminate crew served weapons systems such as tanks and nuclear weapons. Those would belong to the government and be manned by the crew selected by the commander. For an individual to have a tank and have a proper crew, they would require the formation of a private militia.

We can see that even more clearly if we look at the Militia Act passed after the Constitution was implemented. It defined what the individual militia man should have, ie, rifle, pistol, powder, ball, and kit. No mention was made of individual soldiers maintaining cannons. Cannons were maintained by the government and issued to units, not individuals.

Of course there was no law against an individual owning a cannon as there is no law against it today. But I don't believe the Second Amendment protects a right for an individual to own a cannon or any other crew served weapons system.

Chuck52 · Jul 5, 2002

Ozarker,

That was a very reasoned and reasonable relply, and I agree completely with your interpretation.

Chuck

Wingnut · Jul 5, 2002

hi Chuck
I wasn't hiding or keeping my head down .... just lurking and enjoying the repartee. Unfortunately, I let some of Harv's comments get to me and broke my silence.
It certainly has been interesting reading to date ... all three threads.
No doubt you mean by this that you wish everyone was as open to opposing views as are you. Oh, I try pretty hard to be open minded and I have been know to be fairly easily swayed by fact .... in fact, my wife is ALWAYS proving me "wrong". Opinion based on interpretation seldom sways me, however.
I agree that, even though Jules Verne could see the future, the drafters of the Constitution likely could not. Does this mean that we need to interpret what they wrote? No, it means that we use the mechanisms they put in place to amend it. Not interpret some section as obviously meaning that they foresaw a time when wer were so overpopulated we needed to legalize and maybe even enforce abortion.
(Sorry, I'm male and therefore basically unaffected by Roe vs. Wade - except for seeing my tax dollars in use - but consider that decision so faulty that it remains my touchstone of why interpretation sucks!)
Yes, the height of perfection (of firearms) at the time was muzzle loaders .... and they went all the way, friend. They gave the people the right to stay armed ... nay ... they suggested it was essential ("militia") to know how to use the weapons - to protect against some future government - inside or outside - that would want to take away these hard won freedoms. Based on that ... I would have to say that I believe they would see great value in my being as well armed as those who'd like to remove my freedoms away from me (inside and outside). Would they fear my having a tactical nuke? Likely ... but as much as they'd fear evildoers? Likely not.
Using the same logic ... they'd be against all the crud the government makes us go through to buy a gun because they'd never envision a time when the liberals would have turned society on it's head and given the criminals more rights than non-criminals. Their world view was very much pro-capital-punishment .... not as in "let the punishment fit the crime" as in "protect society from a recurrance" (although the former was pretty well majority opinion at that time). They would never have suffered the criminals being free to go and try and purchase guns ... as they would have been hung, be in prison until they'd died of old age or "reformed" (i.e. learned that victims can shoot back).

One thing that appears certain to me is that they, nowhere in their writings, allowed for judges to make laws. They'd more likely be on my side and consider impeachment too small a punishment for such scoundrels.

Of course, that's all just my small-c conservative opinion of some good and just men that gave us this great nation.

peter