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Re-shaping the future


IrishEyes

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As most of you know, our Chief Justice of the Supreme Court passed away on Saturday. By Monday, our President had already announced a replacement. With the impending retirement of Justice O'Connor, what impact could the two new appointments have on future generations in this country? And on the world?

 

This is not meant to be turned into a Bush-bashing thread. Discussion should be aimed at how each President has the opportunity to influence the country for years to come. Please also include your thoughts on opposite parties halting the confirmation process, and what this means to the Court. Try to keep things in perspective, and think about what your own party would do before deciding to bash the opposing party.

 

Enjoy!

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If you're a liberal, there's nothing to worry about, since liberal appointees stay so (Brennan, Marshall), and middle of the roader's go left (Warren, Blackmun, O'Connor, Kennedy, Souter). The conservatives have to go way to the right (Scalia, Thomas) to find someone who will stay conservative. There has alread been an article in the SF Chronicle about Roberts potential to move to the left.

 

Here's a great link on who's been on the court.

 

There is always the potential for "Borking" of nominees and both sides try it, so claims that the other side is being unfair ("he deserves a *fair* up or down vote") are ludicrous. In fact however, unless you're an extremist, you'll probably see that the democrat presidents have chosen less controversial middle-of-the-road nominees, but in fact turn downs over the last few decades have been even and rare: Johnson had two turndowns and 2 successes, Nixon had 2 turndowns and 4 successes and Reagan had only Bork to go with his 4 successes. All this vetting seems to have a useful purpose which is to force the court to middle positions, much to the chagrin of extremists at each political pole. I personally think that's a good thing!

 

It has also seemed to me that personal positions on specific cases and issues are far less important that the strong polarization that has occurred between three distinct views of the constitution:

  • Strict constructionism: the belief that unless it is explicitly specified in the constitution it should not be considered by the court.
  • Original intent: If its not in the constitution, what's important is what the founders originally meant at the time (not how we think it should be now that the world has changed).
  • Loose Constructionism: While it must be adhered to, the constitution is a guide, and its principles along with the concept that the Supreme Court's role in the tripartite structure of the federal government as the protector of minority rights against the tyrrany of the majority allow it to override popular legislation (like Jim Crow legislation, separate-but-equal, etc.)

This is where the real ideological battles lay, and the court has gone back and forth over the years. The push over time is always pendulum like back toward the center, so it may be painful for some periods, but over the very long term, it seems to work out okay.

 

It will be interesting to see the war that breaks out when the court overturns Roe. You ain't seen nothin' yet....

 

Cheers,

Buffy

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Four of nine Justices are on the skids: Rehnquist is dead, O'Connor resigned, Ginsburg is an elderly half-dead cancer survivor; Stevens will be 88 by 2008. Bush the Lesser could appoint four Conservative Christ-besotted replacements. This would return America to those godly days of AD 476-1054.

 

The Founding Fathers demanded separation of Church and State given universal European abuse. We have returned to government as faith-based initiative alternately burning witches, extorting alms, and on its knees supplicating a god that does not exist. Test of faith.

 

Benjamin Franklin donated to all Philadelpha churches and synagogues. He attended none of them.

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Benjamin Franklin donated to all Philadelpha churches and synagogues. He attended none of them.

Exactly. He was not forced to attend any church. That would be the separation of church and state that the Constitution speaks of; as opposed to the common view that the Constitution requires the abolition of religion. An interesting explaination from an oft quoted site is here.

 

Those who do not learn from history... apparently get plenty of air time on any major network.

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...as opposed to the common view (bolding Buffy's) that the Constitution requires the abolition of religion.
Um, whodat nemo? Lenin (and Mao too) turned Atheism into a state religion, and would not have believed in the First Amendment either!

 

Great link! Everyone should read that page!

 

Live-Free-or-Die,

Buffy

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Politics, economics and supreme court justices go through cycles. We get liberal for a while until that goes too far, then we get conservative until that goes too far. Both sides have their good points and negative consequences. One-sided thinking can not express the whole truth, just the opinion and choices of one side.

 

As far as separation of church and state I would like to add a strange twist for debate. Back in the time of Rome, rational thinkers worshipped the goddest Rationalis, ie., the goddess of reason. I am not 100% sure of the spelling. If our goverment is based on reason it would violate separation of church and state because it would be worshipping Rationalis. That is why polititions are usually very one-sided (not being reasonable). If somebody decided to resurrect Rationalis religion worship, (it was a valid religion during the time of Buddism, Christianity, Judism, etc,) than the government could not fund anything based on reason because it would violate separation of church and state. I bring this odd angle up only because we have gotten too petty about Church and State and need to be less insecure about the superficial trimmings of faith.

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Ditto that nemo. I posted more regarding the seperation.

 

I'd respond to UncleAl's rant, but I tire quickly of chasing the hit-and-runs. You can't talk to someone who's not listening.

 

Regarding the judges, blocking confirmation is childish and counter-productive, no matter which side is guilty of it. The checks-and-balances designed into the system are 1) the Senate vote, 2) the filibuster's non-stop debate (when used properly) to make any issues known, and 3) the fact that the court contains members of both parties.

 

The obstacles to the design are 1) underhanded stall tactics (the system is slow and impotent enough already) such as filibuster abuse, and 2) the fact that the court doesn't follow the law anymore but makes it, circa 1803, usurping the purpose of the elected legislators, and the whole political process where the people are involved. We now have a dictatorship of nine, hence all the fuss over these glorified-lawyers.

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Lenin (and Mao too) turned Atheism into a state religion, and would not have believed in the First Amendment either!

That's what I was trying to get at - any _forced_ religion (or the forced absence thereof) is barred by the Constitution. The contemporary view that Christmas decorations on a school bus are illegal has no base in the Constitution.

 

My personal views on the subject of the Constitution are that the 10th Amendment is not a hoax, and that the Constitution is a living document - if the issue is worth changing the Constitution, then do so; otherwise measure it with the Constitution as it stands now. If the Constitution does not address your implied right to worship your God, stand on your head or eat a bologna sandwich on Thursday, then it is not unconstitutional :lol: . Local laws are another story, but this thread is about the Supreme Court, so that's where this particular rant will stay. :)

 

Thanks, by the way, I like that site too.

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The contemporary view that Christmas decorations on a school bus are illegal has no base in the Constitution.
Well, here's the catch: it does depend on who's putting them up there: if it is sanctioned or authorized by the school administration or faculty, there is a need to provide equal access, or it *is* showing favoritism. Most public schools now have gone completely non-denominational around the holidays, but my daughter used to go to a private school that was 1/3 Jewish and about 1/10th black, and during the holidays there was proportional representation of the songs in the "winter concert" for Haunukah and Kwanzaa. When we left there had been a big influx of Indian and Chinese families and increasing pressure for Hindu and Buddist representation. Although this was a pretty liberal school there were still a few fundamentalist families who were horrified that in this great "Christian Nation" that they were being "discriminated against" by taking away time for Christmas.

 

In a private school, you really only have to listen to the parents, in a public school, all of a sudden any crackpot religion off the street can demand equal time. Now in "middle America" this isn't much of a problem *because* of the fact that the interpretation of the establishment clause has leaned toward prohibition, but this is one of those "beware of the law of unintended consequences" situations. Its a fact that Scientology is salivating over this possible future, and they already have an education division that until recently had the outsourcing contract in the San Francisco school district for drug and alcohol education until the link was discovered and they were terminated.

 

Even the pro-religion-in-school crowd has caught this trend, and recently you've been able to see more and more of the "we're a (Judeo-) Christian nation, so we'll tolerate the Jews and if you really twist our arms, limited Muslim beliefs, but the rest are all cults and can reasonably be limited" which is about as far from what the First amendment says as you can get. But it certainly is a can of worms. Moreover, most of the things that these folks want to push does go straight to establishment: prayers at sponsored or official events (e.g. football games), and even "non-denominational" prayer can get you in trouble unless you go through contortions that even the pro-religion folks have problems with like "we thank God or the Gods" (hey some folks have polytheistic religions, you gonna discriminate against them? By the way, pointing out that yes, the pledge is on dangerous ground...it assumes monotheism).

 

I personally don't have a problem with kids praying (hey, they all do before finals!) on their own, or moments of silence or whatever, but I will point out that school is a horrible place for those who are not in the "in" crowd, and if you're the only Jewish kid in a high school where the coach invokes Christ whenever possible, you'd better be ten times better than anyone else if you want to make the team, or not be hazed mercilessly. I've seen that sort of cruelty ruin people for life because the administration couldn't see what was wrong with it. If you've been reading the news, this sort of thing just blew up at the Air Force Academy, and its really ugly.

 

The question you really have to ask is, at what point does letting the majority religion have "proportional representation" create an atmosphere where being a minority is an excuse for exclusion and even abuse even when the "actual" abuse is not "sanctioned," only an environment which brings it out.

 

Cheers,

Buffy

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The question you really have to ask is, at what point does letting the majority religion have "proportional representation" create an atmosphere where being a minority is an excuse for exclusion and even abuse even when the "actual" abuse is not "sanctioned," only an environment which brings it out.

Good question. I find myself wondering at what point does being the minority allow you to control the majority by virtue of potential discrimination claims from the minority? We've both seen that happen. When one <insert ethnic / religious / sexual affiliation> person joins a group of <insert different ethnic / religious / sexual affiliation> people, everyone is supposed to act and think differently - else they are being oppressive, abusive or discriminatory. Nobody is pushing for separate-but-equal idiocy, but the ability of a single person to effectively govern the majority through the threat of discrimination claims has outpaced any proportional representation formerly required; it is now far more effective to be in a minority of some kind than the majority.

 

Abuse is bad. Tolerance is good. The road goes both ways.

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I agree that being a minority religion can be tough if the majority is flaunting their religion. But what is good about religious diversity is that religious holidays do not always overlap. This gives everyone time to express and experience our human diversity. The problem often stems from the parents more than the kids. Kids like to make friends and enjoy learning about each others culture and religion, unless they are taught otherwise. Let the children choose, they would find room for everyone.

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I agree that being a minority religion can be tough if the majority is flaunting their religion.
Its actually not just "flaunting" but insensitivity, and its generally worse when its 90% one religion and 10% ignored minorities. These kinds of places (the vast swath of "middle America") is where the problems usually crop up, and its not KKK like (except at the Air Force Academy :) ), but just plain old not thinking about people like Hindu's who (as was just posted elsewhere) have many gods. In places like San Francisco / Oakland, there's no majority and the nirvana I think you're talking about does exist, oddly enough.
The problem often stems from the parents more than the kids. Kids like to make friends and enjoy learning about each others culture and religion, unless they are taught otherwise. Let the children choose, they would find room for everyone.
Methinks you don't have kids. The cliques and grudges and infighting among 4th grade *girls* in my daughter's class is absolutely unbelievable. Yes they are exclusionary, and its only because the school is heavily integrated religiously (although there's only one black kid!), its not much of an issue. The thing that validates your statement though is that although the kids are bad, the parents can be *much* worse...

 

Now I'll step back and say for Irish that we're getting a bit off topic and lets take this issue to a new thread... (even though its nemo's fault! whack him for me Irish! :lol: )

 

Cheers,

Buffy

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Maybe if people in America saw themselves as American-blacks, American-Christian, American-Jews, etc., instead of Black Americans, Christian-Americans, Jewish Americans, etc., the children might realize that we are all on the same side. Perpetuating diversity sounds good in theory but it apparently perpetuates distinctions that separates us from each other. This was resolved back in the 60's and 70's but culture unknowingly raised the walls back up due to short sighted thinking and misguided compassion.

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Getting back to the point of the thread..... :shrug: ;)

 

The idea of Judicial Review seems to be paramount to having an effective Judicial branch that can act as a balance to the legislative and executive branches. Without this, the judicial branch is nothing more than a lackey for the legislative branch.

 

The Supreme court is there to rule on the constituionality of certain cases and therefore laws. If it cannot strike something that is contrary to the constitution, it really serves no purpose. There have been great swings in what has been considered constitutional over time. The Supreme Court decided that slaves were property in the Dred Scott case. Slavery was later overturned only by an constitutional amendment. Possibly a slave holder could have sued on the validity of the emancipation proclimation. Who knows...

 

This just illustrates both the transitional nature of the SC's rules, but also the waves that eminate and continue from certain decisions.

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The idea of Judicial Review seems to be paramount to having an effective Judicial branch that can act as a balance to the legislative and executive branches. Without this, the judicial branch is nothing more than a lackey for the legislative branch.

The judicial branch is supposed to be the lackey, enforcing the legislated will of the people. When the SC assumes to discern the validity of the efforts of the other two branches, a battle ensues between the people and the judges, as is illustrated by your slavery example.

 

The balances on the law-making should be the veto and the ballot box. Sadly it was apostacized in 1803.

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Article. III.

Section. 2.

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

 

 

Article. VI.

Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 

These seem to indicate that that the courts have an active role in detremining the constitutionality of such laws and dismissing those that fall short of the current interpretation of the Constitution. This being said, the interpetation of the Constitution and its various alterations can change over time. It is a living document and one that adapts to the changes in our culture, but is also the backbone of individual rights. This balances the rights of the minority.

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The judicial branch is supposed to be the lackey, enforcing the legislated will of the people.
Actually, the Executive branch is the enforcement arm. If the Supreme Court makes a decision, it has no officers to cause the decisions to be enforced, although if the Executive Branch refused to follow the decision of the court, you'd have a constitutional crisis, which is part of the key to Marbury v. Madison which you linked.
When the SC assumes to discern the validity of the efforts of the other two branches, a battle ensues between the people and the judges, as is illustrated by your slavery example.
Actually, Jim Crow laws were upheld by the court (e.g. post-Dred Scott, most infamously Plessey v. Ferguson), and quite frankly it took until Brown v. BOE for the court to do anything that could be construed as "activist" at all.
The balances on the law-making should be the veto and the ballot box.
So you don't see any point in there being any sort of review of laws based on the Constitution? Should we just throw it away? Its just a "guide" like the Loose Constructionist say, and the Legislative and Executive Branches should pretty much do whatever the majority says?

 

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively over the separate individuals who compose it — its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism. — John Stuart Mill, On Liberty

You might also want to Wiki Tyranny of the majority" although the examples given there read like a laundry list of the bete noire's of social conservatives....

 

Cheers,

Buffy

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