Another activist judge

[John Dibble]

Did I say they were perfect? No. You mention states' rights - well, the other two branches do a fine job of crapping over them as well.

This bothers me as well, but at least they were elected to make laws and can be tossed by the people.

Well, of course, the supreme court judges in the federal and most state governments are appointed by the president and govenors, so the people do have a say in their appointment. I wouldn't be against imposing limitations on their terms though(same goes for members of Congress), perhaps having the House of Representatives review them every fifteen years or so, and if 3/5 disapprove remove them from office. In fact, the electoral college for the presidency was originally chosen by the state legislatures rather than by state elections, senators too. Personally, I think the old system was better. I think making the sytem more democratic has caused a lot of problems for our country.

[bejkuy]

The rights to privacy and free expression are clearly protected in the Constitution.

Where?  Prove it.

[John Dibble]

So then, the courts had no place in Brown vs. Board of Education? I assure you, unconstitutional segregation laws weren't going to be struck down by the legislature.

1964 civil rights act?  Social studies?

I'm pretty sure Brown vs. Board of Education, which was decided in 1954, predates the Civil Rights Act of 1964

My point exactly.  The legislature DID eventually deal with this problem.

However the SCOTUS was not out of line in this case because state segregation laws were a clear violation of the 14th amendment.

 Amendment XIV.***

               Section 1. All persons born or naturalized in
           the United States and subject to the jurisdiction
           thereof, are citizens of the United States and of the
           State wherein they reside. No State shall make or
           enforce any law which shall abridge the privileges

           * Superseded by section 3 of the Twentieth Amendment.
           ** The Thirteenth Amendment was ratified December 6,
           1865.
           *** The Fourteenth Amendment was ratified July 9, 1868.

           or immunities of citizens of the United States; nor
           shall any State deprive any person of life, liberty, or
           property, without due process of law; nor deny
           to any person within its jurisdiction the equal protection
           of the laws.
 

The question is though, would they have dealt with it if the court hadn't first? Can you be sure they would have?

No one can be sure, which is why it's a good thing that the courts did act, at least IMO.

The courts had every right to act in THAT instance as I have cleary stated above.  

Think about it though.  Do you want to live in a system where judges can do what is "right" because they are all knowing and can't trust the making of laws to elected officials?  It's gotten out of hand.  And, no John I'm not gonna cut and run.  I'm gonna stay and fight.  I love this county, the greatest in the world,  and I will do everything in my power to keep it that way.

Well, more power to ya, but the problem is you can't have a perfect system. Personally, I think the system might need some slight reform, but we have the best in the world in my opinion.

[The Duke]

Dibble,

The notion that courts gave us Civil Rights because elected pols wouldn't is a fiction invented by judicial activists to justify their own existence.  In 1947, elected officials de-segregated the military, in 1957 and 1964 Civil Rights bills were passed, and in 1965, the Voting Rights Act was passed.  The most important victories were all made by legislators and Presidents, not courts.

Second, in Brown, the court was within its rights because the segregation of schools was treating one ethnic group in an unequal way.  There is no comaprable situation here.

[John Dibble]

The rights to privacy and free expression are clearly protected in the Constitution.

Where?  Prove it.

Just for reference, the First Amendment:

"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."

Also of use, the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Now, one has to look at both the words and intent of the Amendment. I may be mistaken, but the freedom of expression was confirmed by the Supreme Court over the issue of flag burning or something like that. One could easily interpret the intent of the First Amendment, along with the Ninth Amendment(which adds some flexibility) to declare freedom of expression protected by the constitution. It's not necessarily 'clear', though, as a different interpretation could be made. However, I believe that freedom of expression is in the realm of the intent of the First Amendment.

[John Dibble]

Dibble,

The notion that courts gave us Civil Rights because elected pols wouldn't is a fiction invented by judicial activists to justify their own existence.  In 1947, elected officials de-segregated the military, in 1957 and 1964 Civil Rights bills were passed, and in 1965, the Voting Rights Act was passed.  The most important victories were all made by legislators and Presidents, not courts.

Second, in Brown, the court was within its rights because the segregation of schools was treating one ethnic group in an unequal way.  There is no comaprable situation here.

Like I said, you can't prove it either way. I'm sure eventually the Legislature would have gotten to it, the question is is how much sooner or later it would have taken(most likely later) for them to get to it. I won't deny that the larger victories are often won by the other two branches, but sometimes the court pushes them in the right direction, accelerating the process. But, as I said, there's no perfect system, but I think ours is the best.

As far as the situations not being comparable, they aren't in your view, and I'm sure you've heard everyone else's views as to why they are(certainly not the same though, but to me comparable in some respects). Likely mine are no different, so I won't bother you with the details as you've probably heard them already.

[bejkuy]

The rights to privacy and free expression are clearly protected in the Constitution.

Where?  Prove it.

Just for reference, the First Amendment:

"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."

Also of use, the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Now, one has to look at both the words and intent of the Amendment. I may be mistaken, but the freedom of expression was confirmed by the Supreme Court over the issue of flag burning or something like that. One could easily interpret the intent of the First Amendment, along with the Ninth Amendment(which adds some flexibility) to declare freedom of expression protected by the constitution. It's not necessarily 'clear', though, as a different interpretation could be made. However, I believe that freedom of expression is in the realm of the intent of the First Amendment.

That's a stretch and you know it.  We have the right (constitutionally)  to say what we want, not do what we want.  There is no right to privacy in the Constitution beyond unreasonable searches and seizures  Plus you are basing this on a decision (flag burning) that is not protected in the constitution.  

We are to judge the constitution by what it SAYS.  That is the role of judges.  Judicial restaint, what a concept.

Btw, i hate it when people burn the flag.  It turns my stomach.  However, I think it should be legal.  BUT, states are well within their right (if we are going by the constitution) to ban flag burning.

[John Dibble]

It's not a stretch in my view. That's the problem. Judges are human just like the rest of us - meaning they have opinions. Just becuase you don't agree with my interpretation of things does not make either of us right. Unless you can bring back the framers from the dead, we won't know their stance on the issue.

I don't like flag burning either(considering it is a symbol of the freedom that allows you to burn the flag in the first place), but I'd defend anyone who did it from people who would try to use law to stop them. Any state that would ban it becomes tyrannical in my view.

[bejkuy]

It's not a stretch in my view. That's the problem. Judges are human just like the rest of us - meaning they have opinions. Just becuase you don't agree with my interpretation of things does not make either of us right. Unless you can bring back the framers from the dead, we won't know their stance on the issue.

I don't like flag burning either(considering it is a symbol of the freedom that allows you to burn the flag in the first place), but I'd defend anyone who did it from people who would try to use law to stop them. Any state that would ban it becomes tyrannical in my view.

I guess our arguement boils down to loose-constructionist vrs constructionist interpretation of the constitution.
I say take the law as it is written.  Don't read between the lines.  Most libertarians I know (personally, there are actually quite a few up here), feel the same way I do.  They are strictly rule of law folks.  You seem to be of a different cut the most libertarians.  More liberal.

[bejkuy]

John Dibble,

It's been enjoyable debating with you.  Now it's time for me for me to get back to work.  I don't get to post as often as I'd like due to time restraints.  (wife, kids, job, etc.)

[John Dibble]

Well, actually, I'm hardly loose-constructionist. The problem is, a completely literal translation would be bad. Like I said, the ninth amendment pretty much states that the bill of rights does not contain all the rights of the people. Problem is, what rights does that include?

Of course, on freedom of expression, there are limits. For instance, the KKK burning a cross on someone's lawn is expression, but the thing is that violates that someone's private property(another right) and is a threat to them(even spoken threat is illegal, because it declares intent to do a harmful act). Burning a flag in protest(if you own it of course, obviously you can't do it with one owned by the government or someone else), while distateful, does not harm anyone, so I can see no logical reason to ban it.

[John Dibble]

John Dibble,

It's been enjoyable debating with you.  Now it's time for me for me to get back to work.  I don't get to post as often as I'd like due to time restraints.  (wife, kids, job, etc.)

Understood, fortunately for myself I'm on a two week break, but I've got to start up my internship again after that.

[Posterity]

It's funny how people complain about "activist judges" when it's really the "activist politicians" who have done far more to weaken this country.

News flash:  Judges only interpret existing laws.  They do not enact new laws.  They cannot "legislate from the bench."

If you don't like a judge's ruling, contact your representatives and urge them to initiate impeachment proceedings against that judge.  That's the legal (constitutional) way of dealing with judges that are not acting in accordance with their duties.

[AuH2O]

lol "Libertarians" supporting communist judges. Hilarious.

[migrendel]

John is absolutely correct, bejkuy. The Ninth Amendment reserves certain rights which are unenumerated. The court has to determine whether one of these concepts of rights has been violated, and since they are not listed in the Constitution, the judge has to look outside the Constitution. In that sense, the Ninth Amendment is open-ended, and I see no controversy in finding a right to privacy. And that's not a fabrication of liberal judges. Though the right to privacy was first announced in Griswold v. Connecticut in 1965, it had Constitutional antecedents. One can look to an 1898 article in the Harvard Law Review by Louis Brandeis talking explicitly about the right to privacy. One can look to the unanimous decision in Pierce v. Society of Sisters (1925), written by James McReynolds, one of the most conservative justices in the Court's history, which said that parents had an implied Constitutional liberty to rear their children. One can look to Rochin v. California (1952), a decision finding a Constitutional right to physical autonomy, also unanimously, and this time written by the epitome of a strict constructionist, Felix Frankfurter. So, AuH20 and bejkuy, I would suggest a less myopic perspective on the law.

And for your benefit, I will explain those Supreme Court precedents you simply could not grasp. The decisions on obscenity law, at least in the case of A Book Called John Cleland's "Memoirs of a Woman of Pleasure" v. Massachusetts (1966), drew up a three pronged standard for what is obscene. It must a) be utterly without any redeeming social value, b) be patently offensive, and c) appeal to a prurient interest. This decision was not enforced stringently because of subsequent decisions in Stanley v. Georgia (1969, another unanimous case) and Redrup v. New York (1971) which upheld the right to privacy as applied to obscenity kept within the home. The Court eventually ruled that obscenity law can be enforced locally based upon community standards (Miller v. California [1973]), but has overruled overly broad community definitions of obscenity (Jenkins v. Georgia [1974], yet another unanimous decision, written by Rehnquist).

Now for capital punishment. The Supreme Court did not rule that the death penalty was prima facie unconstitutional in Furman v. Georgia (1972), but did rule that the enforcement of it was cruel and unusual. When the states implemented the Court's recommendations, it reinstated the death penalty in Gregg v. Georgia (1976).

The busing decision was unanimous (Swann v. Charlotte-Mecklenburg Board of Education [1971], with Burger writing for the Court), and ruled that the proven racial disparities of the schools were caused by the residual effects of segregation. Since they were judges, the community's approval of the busing was irrelevant. Much to your reassurance, the Supreme Court limited the scope of busing to individual school districts (Milliken v. Bradley [1974]).

The Supreme Court ruled that the children of illegal immigrants are entitled to a public school education (Plyler v. Doe [1982]) because the Equal Protection Clause, unlike other Constitutional provisions, is not limited to citizens, but anyone within the state's jurisdiction. But I don't know why anyone would want to deny the innocent children of immigrants an education in the first place. By the way, the case was from Texas, not California (you might be thinking of the Proposition 187 case, which never reached the Supreme Court), and did not concern healthcare.

And for the record, Roe was not based on the same penumbraic theory of privacy as Griswold, but the due process clause of the Fourteenth Amendment.

I hope this clears up your erstwhile qualms about our nation's highest court.

[True Federalist (진정한 연방 주의자)]

Claimed the death penalty was unconstitutional only to reverse itself.

Not quite.  The Supreme Court never found the death penalty to be unconstitutional per se.  What they did do was determine that the way it was being implemented was unconstitutional, but left open the door for the states and the federal government to come up with what they viewed as a constitutional death penalty law which is what eventyally happened,

[Posterity]

lol "Libertarians" supporting communist judges. Hilarious.

"Republicans" wanting "communist judges" to remain on the bench.  Scary.

[John Dibble]

lol "Libertarians" supporting communist judges. Hilarious.

The freedoms of expression and privacy are hardly within the realm of communism.

Now, more on a literal interpretation of the Constitution. As I said, it's bad to interpret too loosely, but it's also bad to interpret completely literally. For instance, let's look at the freedom of speech gauranteed by the First Amendment. Taken literally, ALL speech would be legal, which would include threats to a person's life or property, slander(a lie about a person is only slander if it costs them money, like if a person spread the rumor that a restaraunt owner uses horse meat when they don't, costing them customers and therefore money), and speaking aloud classified information relevant to national security. Obviously, you can't do those things, as all are against the law. But why? The Constitution says you have freedom of speech. The reason is rather simple - those things can cause harm to others. You have quite a number of rights, but the extent of those rights end once they harm others - your right to swing your fist ends at my face. So, a little room for interpretation isn't a completely bad thing, because being too literal can ignore intent and common sense.