Carpe give me your house!
CNN Story
In a 5-4 decision that is clearly one of the worst the Court has ever handed down, the Supreme Court today ruled that one's property rights are essentially meaningless.
Think it's Scalia, Rehnquist, et. al. that said this? Guess again. The Court's lefties, with an increasingly idiotic Anthony Kennedy, stripped away American citizens' rights to their property. It is not too well-known that the Founding Fathers long believed that the single most important right was not free speech or even religious expression, but the right to one's own private property. SCOTUS today ignored all that, saying that government knows best.
This is terrible. Every American who owns property or who strives to should be disgusted by this.
Think it's Scalia, Rehnquist, et. al. that said this? Guess again. The Court's lefties, with an increasingly idiotic Anthony Kennedy, stripped away American citizens' rights to their property. It is not too well-known that the Founding Fathers long believed that the single most important right was not free speech or even religious expression, but the right to one's own private property. SCOTUS today ignored all that, saying that government knows best.
This is terrible. Every American who owns property or who strives to should be disgusted by this.
This IS a troubling decision, and not just because the limousine liberals on the Court supported it; the four conservative dissenters were Scalia, Thomas, Rehnquist & O'Connor. At first blush, it might not seem to stretch existing precedent, but its caving to local interests, without considering how they may be manipulated by monied ones, ignores reality and removes an important check upon abuse of eminent domain laws. If ever there were a decision to be granted reconsideration, this is it.
Ohhhh Myyyy Gooodddd.
It has finalllly happpened.
Hell has frozen over.
I agree with Chief Justice William H. Rehnquist, and Clarence Thomas...
<<Shuddderrrr>>
Rob
It has finalllly happpened.
Hell has frozen over.
I agree with Chief Justice William H. Rehnquist, and Clarence Thomas...
<<Shuddderrrr>>
Rob
Where did I read somewhere about Life, Liberty and Property being fundamental rights or some such?
QUOTE
msully:
Where did I read somewhere about Life, Liberty and Property being fundamental rights or some such?
Why do you hate America? Where did I read somewhere about Life, Liberty and Property being fundamental rights or some such?
Today, I am a Libertarian in DEEP SHOCK. This country has thrown its founding principles into the dumpster. Timothy McVeigh picked the wrong city!
Here is the text of the decision, in case anyone's interested in reading this.
Some excerpts from the dissent:
Some excerpts from the dissent:
QUOTE
Justice O'Connor dissenting
Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner...
To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property—and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amend-ment.
To save their homes, petitioners sued New London and the NLDC, to whom New London has delegated eminent domain power. Petitioners maintain that the Fifth Amendment prohibits the NLDC from condemning theirproperties for the sake of an economic development plan. Petitioners are not hold-outs; they do not seek increasedcompensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claimthat the NLDC’s proposed use for their confiscated prop-erty is not a “public” one for purposes of the Fifth Amend-ment. While the government may take their homes to build a road or a railroad or to eliminate a property usethat harms the public, say petitioners, it cannot take their property for the private use of other owners simply be-cause the new owners may make more productive use of the property.
The Fifth Amendment to the Constitution, made appli-cable to the States by the Fourteenth Amendment, pro-vides that “private property [shall not] be taken for public use, without just compensation.” When interpreting theConstitution, we begin with the unremarkable presump-tion that every word in the document has independentmeaning, “that no word was unnecessarily used, or need-lessly added.” Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment’s language to impose two distinct conditions on the exercise of eminent domain: “the taking must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.” These two limitations serve to protect “the security of Property,” which Alexander Hamilton described to the Philadelphia Convention as one of the “great obj[ects] of Gov[ernment].” 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1934). Together they ensurestable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government’s eminent domain power—particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority’s will.
Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner...
To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property—and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amend-ment.
To save their homes, petitioners sued New London and the NLDC, to whom New London has delegated eminent domain power. Petitioners maintain that the Fifth Amendment prohibits the NLDC from condemning theirproperties for the sake of an economic development plan. Petitioners are not hold-outs; they do not seek increasedcompensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claimthat the NLDC’s proposed use for their confiscated prop-erty is not a “public” one for purposes of the Fifth Amend-ment. While the government may take their homes to build a road or a railroad or to eliminate a property usethat harms the public, say petitioners, it cannot take their property for the private use of other owners simply be-cause the new owners may make more productive use of the property.
The Fifth Amendment to the Constitution, made appli-cable to the States by the Fourteenth Amendment, pro-vides that “private property [shall not] be taken for public use, without just compensation.” When interpreting theConstitution, we begin with the unremarkable presump-tion that every word in the document has independentmeaning, “that no word was unnecessarily used, or need-lessly added.” Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment’s language to impose two distinct conditions on the exercise of eminent domain: “the taking must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.” These two limitations serve to protect “the security of Property,” which Alexander Hamilton described to the Philadelphia Convention as one of the “great obj[ects] of Gov[ernment].” 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1934). Together they ensurestable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government’s eminent domain power—particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority’s will.
QUOTE
Justice Thomas dissenting
Long ago, William Blackstone wrote that “the law of the land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property.” 1 Commentar-ies on the Laws of England 134–135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “‘[P]ublic [P]urpose’ ” Clause, ante, at 9–10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This defer-ential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”
I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as JUSTICE O’CONNOR powerfully argues in dissent. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, how-ever, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases con-struing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In myview, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.
The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take prop-erty solely for public purposes is bad enough, but extend-ing the concept of public purpose to encompass any eco-nomically beneficial goal guarantees that these losses will fall disproportionately on poor communities.
Long ago, William Blackstone wrote that “the law of the land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property.” 1 Commentar-ies on the Laws of England 134–135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “‘[P]ublic [P]urpose’ ” Clause, ante, at 9–10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This defer-ential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”
I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as JUSTICE O’CONNOR powerfully argues in dissent. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, how-ever, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases con-struing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In myview, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.
The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take prop-erty solely for public purposes is bad enough, but extend-ing the concept of public purpose to encompass any eco-nomically beneficial goal guarantees that these losses will fall disproportionately on poor communities.
After reading O'Conners desent I have to believe that this will someday - 20 years from now? - become the majority opinion after a lot of upset and heartache.
It raises an interesting question that no one has thought of yet as far as I have read...
If a corporation were involved, and the local or state government decided that 'in the interest of economic development' the corporations property should be seized and redistributed to better benefit the communitty...
Can you hear the screams from GE yet??? They have a Billion+ dollars worth of undeveloped waterfront property just N of Albany on the Hudson and Mohawk rivers that they haven't used in ages since they scaled back and tore down 3/4's of their plants...
Surely that waterfront property would make wonderful developements...
Can you hear the Screams from Exxon ???? They have several billion dollars worth of California waterfront property they no longer use for refining and storage since they moved some refining offshore...
2800 acres of S California Oceanfront is worth some big bucks...
I know a couple of Railroads that no longer maintain or use certain tracks near Brunswick GA - The Port railyard near the old Babcock and Wilcox plant must be 1500 acres+ - worth a fortune to Condo and Marina development...
And what about all that GA Pacific Land in Alabama?
All that abandoned Kodack property in Rochester, NY?
The IBM properties in FT Lauderdale, FL; Kingston, NY, and Santa Theresa, CA?
The GM properties in Detroit? - Great urban renewal ideas there!
Can you hear G Steinbrenner when they inquire about all that nice American Shipbuilding property on the NY and NJ shorethat isn't being used right now?
Surely all of these would benefit the local communities more as redevelopements (Maybe a few Indian Casinos?) than the land serving as simple depreciating tax write offs for major corps???
As long as they are not actively using the property... ohhh this could get NASTY.
And the corps can fight all they want with hundreds of lawyers, now they would be faced with overturning a Supreme Court decision that every court they go into can use as precedence.
Someone wasn't thinking too clearly on this one...
Rob
[ June 23, 2005, 10:01 PM: Message edited by: ITJock ]
It raises an interesting question that no one has thought of yet as far as I have read...
If a corporation were involved, and the local or state government decided that 'in the interest of economic development' the corporations property should be seized and redistributed to better benefit the communitty...
Can you hear the screams from GE yet??? They have a Billion+ dollars worth of undeveloped waterfront property just N of Albany on the Hudson and Mohawk rivers that they haven't used in ages since they scaled back and tore down 3/4's of their plants...
Surely that waterfront property would make wonderful developements...
Can you hear the Screams from Exxon ???? They have several billion dollars worth of California waterfront property they no longer use for refining and storage since they moved some refining offshore...
2800 acres of S California Oceanfront is worth some big bucks...
I know a couple of Railroads that no longer maintain or use certain tracks near Brunswick GA - The Port railyard near the old Babcock and Wilcox plant must be 1500 acres+ - worth a fortune to Condo and Marina development...
And what about all that GA Pacific Land in Alabama?
All that abandoned Kodack property in Rochester, NY?
The IBM properties in FT Lauderdale, FL; Kingston, NY, and Santa Theresa, CA?
The GM properties in Detroit? - Great urban renewal ideas there!
Can you hear G Steinbrenner when they inquire about all that nice American Shipbuilding property on the NY and NJ shorethat isn't being used right now?
Surely all of these would benefit the local communities more as redevelopements (Maybe a few Indian Casinos?) than the land serving as simple depreciating tax write offs for major corps???
As long as they are not actively using the property... ohhh this could get NASTY.
And the corps can fight all they want with hundreds of lawyers, now they would be faced with overturning a Supreme Court decision that every court they go into can use as precedence.
Someone wasn't thinking too clearly on this one...
Rob
[ June 23, 2005, 10:01 PM: Message edited by: ITJock ]
QUOTE
ITJock
I know a couple of Railroads that no longer maintain or use certain tracks near Brunswick GA - The Port railyard near the old Babcock and Wilcox plant must be 1500 acres+....
The railroads were themselves built using the power of eminent domain. Otherwise you'd have one farmer between Atlanta and Chattanooga holding out for an unimaginable sum.I know a couple of Railroads that no longer maintain or use certain tracks near Brunswick GA - The Port railyard near the old Babcock and Wilcox plant must be 1500 acres+....
Abandoning a railroad line is a little bit different than abandoning other property. Unused right of way is railbanked. Give me a minute....
Northeastern Vermont Development Association
QUOTE
Railbank
Federal and state law enables the state to \"railbank\" abandoned railroad right-of-ways in order to promote public use of the corridors, and preserve them for potential future rail use.
It seems old rail lines are different. They can be converted to public use, but they can also be \"uncoverted\" and returned to use as an active rail line. You have to go through the National Surface Transportation Board (inevitably known as \"surfboard\").Federal and state law enables the state to \"railbank\" abandoned railroad right-of-ways in order to promote public use of the corridors, and preserve them for potential future rail use.
Secrets to Successful Rail-Trails
QUOTE
Chapter 7: What to Do if the Line is Soon to be Abandoned
If you are eyeing a little used or unused rail corridor that is not yet authorized for formal abandonment, you may be in a good position to convert it into a trail because the corridor is still intact and you have certain legal handles working in your favor.
First, the US Congress has expressed its intention that \"suitable\" rail rights of way should be converted to trail use upon abandonment of rail service if a local agency is willing to accept trail management responsibilities. Even though this congressional mandate is not always carried out, there are several laws and regulations you can use to further your efforts.
Section 8(d) of the National Trails System Act: \"Railbanking\"
In 1983, congress amended the national trails system act to create a program called “railbanking.” Railbanking allows corridors proposed of abandonment to be preserved intact or put in a “bank” for future transportation use. In the meantime the corridors can be used as trails.
Because railbanked lines are not considered abandoned under federal or state law, easements are not extinguished and the corridors are not fragmented.
The Supreme Court unanimously upheld the constitutionality of railbanking in 1990 and as of mid-1993, more than 85 corridors had been or are in the process of being railbanked.
Google for \"railbank.\"If you are eyeing a little used or unused rail corridor that is not yet authorized for formal abandonment, you may be in a good position to convert it into a trail because the corridor is still intact and you have certain legal handles working in your favor.
First, the US Congress has expressed its intention that \"suitable\" rail rights of way should be converted to trail use upon abandonment of rail service if a local agency is willing to accept trail management responsibilities. Even though this congressional mandate is not always carried out, there are several laws and regulations you can use to further your efforts.
Section 8(d) of the National Trails System Act: \"Railbanking\"
In 1983, congress amended the national trails system act to create a program called “railbanking.” Railbanking allows corridors proposed of abandonment to be preserved intact or put in a “bank” for future transportation use. In the meantime the corridors can be used as trails.
Because railbanked lines are not considered abandoned under federal or state law, easements are not extinguished and the corridors are not fragmented.
The Supreme Court unanimously upheld the constitutionality of railbanking in 1990 and as of mid-1993, more than 85 corridors had been or are in the process of being railbanked.
[ June 24, 2005, 09:30 AM: Message edited by: twin58 ]
Rob, that "someone" who "wasn't thinking too clearly on this one" is Justice Kennedy who, as MIB notes, is writing increasingly bizarre opinions. And thanks for the Rails-to-Trails link; they're a great outfit and have done a lot to develop some really first class bikeways around the US.
QUOTE
gmginsfo:
Rob, that \"someone\" who \"wasn't thinking too clearly on this one\" is Justice Kennedy who, as MIB notes, is writing increasingly bizarre opinions. And thanks for the Rails-to-Trails link; they're a great outfit and have done a lot to develop some really first class bikeways around the US.
Ohhh, I know who it was - and you're right, his writing IS getting bizarre lately...Rob, that \"someone\" who \"wasn't thinking too clearly on this one\" is Justice Kennedy who, as MIB notes, is writing increasingly bizarre opinions. And thanks for the Rails-to-Trails link; they're a great outfit and have done a lot to develop some really first class bikeways around the US.
My problem is that I still can't imagine why a majority of the court went along...
Rob
[ June 24, 2005, 03:02 PM: Message edited by: ITJock ]
You're not the only one who is thinking this, IT. I find it bizarre that Kennedy wasn't on the same side as O'Connor, who wrote a scathing dissent.
Did Kennedy use international law to decide this one? Did he rely on traditions in other countries? (See Roper v. Simmons, 543 U.S. ___ (2005).)
Kennedy's lost it.
On a related note, here is an article on how the Court trampled the rights of the little people.
Did Kennedy use international law to decide this one? Did he rely on traditions in other countries? (See Roper v. Simmons, 543 U.S. ___ (2005).)
Kennedy's lost it.
On a related note, here is an article on how the Court trampled the rights of the little people.
This "new international[e]ism" is troubling, since it often relies upon civil law precedents to augment our common law. The two are NOT the same and are often hostile to each other, as evidenced in the juvenile death penalty decision a few months ago. The only explanation I can give for it is that many folks from the relative hinterlands, as Kennedy is in coming from California, think it adds lustre if they acquaint themselves with and adopt - literally - a world view. News item: it doesn't and just marks you as more of a rube than ever.
QUOTE
gmginsfo:
... The only explanation I can give for it is that many folks from the relative hinterlands, as Kennedy is in coming from California, ...
California is the Hinterlands these days???... The only explanation I can give for it is that many folks from the relative hinterlands, as Kennedy is in coming from California, ...
Chuckle... there is a very good story (sad and true) about the guy who opposed HR Clinton when she ran for the NY seat in the US Senate. In public, on the record, he responded to a reporters question why he wasn't going to campaign further North than a single trip to Albany? To a reporter from the News, he said :
"The only things north of the Hudson River are welfare cases, wild animals, people married to their cousins, and NRA gun nuts"
How many votes do you think he got from upstate... <Chuckle>.
If you think CA is the 'Hinterlands', I think that says more about your views than it does about Californians'.
Rob
This guy sounds like a crackpot, but the idea is apropos.
Eminent Domain
Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.
Eminent Domain
Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.
LOL! What goes around, comes around, or should I say what goes up, must come down?
Rob, I meant hinterlands in the sense of CA's still being a bit outside the legal mainstream, compared to the Wall, K and other East Coast city Street law firms. Kennedy was a bit of a rube prior to coming to the Ninth Circuit.
Rob, I meant hinterlands in the sense of CA's still being a bit outside the legal mainstream, compared to the Wall, K and other East Coast city Street law firms. Kennedy was a bit of a rube prior to coming to the Ninth Circuit.
QUOTE
orsino4:
This guy sounds like a crackpot, but the idea is apropos.
Eminent Domain
Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.
Oooohhhh - I'm going to write that town council and tell them how much I'm looking forward to spending my tourism dollars in their new Lost Liberty Hotel!!
This guy sounds like a crackpot, but the idea is apropos.
Eminent Domain
Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.
IT Jock - reading your list above of derelict land, I would say this decision is long overdue!
There is, BTW, a similar debate here as to whether local authorities should be given the power to compulsorily purchase land needed by private developers. It seems to have come about because whereas 30 years ago town halls would do slum-clearance and urban regeneration projects themselves, they now encourage private developers to do it for them. But the private developers dont have the compulsory purchase powers and too many projects never make it off the drawing-board.
You may not like this particular decision (and I do understand why) but some change is needed. Otherwise we'll have to go back to local authorities doing the regeneration projects themselves.
There is, BTW, a similar debate here as to whether local authorities should be given the power to compulsorily purchase land needed by private developers. It seems to have come about because whereas 30 years ago town halls would do slum-clearance and urban regeneration projects themselves, they now encourage private developers to do it for them. But the private developers dont have the compulsory purchase powers and too many projects never make it off the drawing-board.
You may not like this particular decision (and I do understand why) but some change is needed. Otherwise we'll have to go back to local authorities doing the regeneration projects themselves.
QUOTE
jamesw:
You may not like this particular decision (and I do understand why) but some change is needed. Otherwise we'll have to go back to local authorities doing the regeneration projects themselves.
Previous court decisions already allowed takings for 'blight'. This wasn't blight. You may not like this particular decision (and I do understand why) but some change is needed. Otherwise we'll have to go back to local authorities doing the regeneration projects themselves.
In this case a 'lower middle class' neighborhood just wasn't good enough for them.
msully - point taken. So where do you want the cut-off point?
At the point where it does least harm to the rights of the individual against government.
The ethical imperative is to do the least harm.
The decision only becomes difficult in the uncertainty of the real world.
But in this case I predict that the gradual erosion of rights and civil liberties we have seen in many recent court cases will do the more harm to our Republic in the long run.
Don't get me wrong - I am actually a Judicial Activist, however I believe the activism should be based upon the principles of the rights of the individual over the rights of government up to the point where the individual might cause harm. Holmes preached “judicial restraint”, however he would never have imagined annulling those rights reserved to the individual.
Rob
[ June 29, 2005, 07:12 PM: Message edited by: ITJock ]
The ethical imperative is to do the least harm.
The decision only becomes difficult in the uncertainty of the real world.
But in this case I predict that the gradual erosion of rights and civil liberties we have seen in many recent court cases will do the more harm to our Republic in the long run.
Don't get me wrong - I am actually a Judicial Activist, however I believe the activism should be based upon the principles of the rights of the individual over the rights of government up to the point where the individual might cause harm. Holmes preached “judicial restraint”, however he would never have imagined annulling those rights reserved to the individual.
Rob
[ June 29, 2005, 07:12 PM: Message edited by: ITJock ]
QUOTE
ITJock:
I am actually a Judicial Activist
Rob
That term itself is anethema to the Constitution. You want activism? Get an elected official to do it. Regardless of whether one's left or right, the very term "activist" should never refer to a member of the unelected judiciary. That is a term that should refer to someone who is elected, one whose job it is to enact laws.
I am actually a Judicial Activist
Rob
The charge of "judicial activism" has become a "ubiquitous epithet" and unhelpful "scare phrase," Georgetown law professor Peter Edelman recently noted in The Washington Post. (God we need more Jesuits, at least they have been trained to think critically and logically)
..."Most people who use the term don't provide a coherent definition of it. It typically means judicial opinions with which they disagree," says Randy E. Barnett, a law professor at Boston University who considers himself a libertarian and a defender of "original intent" in Constitutional matters.
Example: Shrubs State of the Union
""Because marriage is a sacred institution and the foundation of society, it should not be re-defined by activist judges. For the good of families, children, and society, I support a constitutional amendment to protect the institution of marriage. So that instead of marriage not being defined by "activist judges" ... Because a society is measured by how it treats the weak and vulnerable..." - God I still can't believe he said that in public - doesn't he have a decent speachwriter anywhere?
While I agree with Prof Barnett on original intent, I think we both agree on judicial activism, where would we be without 'activist judges'?
Without activism Marbury Vs Madison would be moot. The 3/5ths rule would still apply, Brown vs Board of E would have been struck down, we would not have Miranda, we would not have most civil rights law of the last half of the 20th C.
Certainly gay's and Lesbians would not have any real protection or rights (not that we have that many now). If it were up to no one but the majority, you and I would be in prison or hiding in a closet.
If you wish to debate the 4 different foundations of judicial decision-making (strict construction, precedent, natural law, and the Declaration of Independence) at least be prepared to extemporize intelligently.
So don't swear at "Activist Judges" unless you know what your talking about, and are ready to defend it with a coherent definition.
The unbridled antipathy so many conservatives have for this weeks 'eminent domain' decision is a case in point. If the justices had ruled the opposite, then there would have been howls from the far right about them throwing out the constitution in another way.
At its simplist (and most simplistic) it can be defined as follows.
Judicial restraint v. activism
Restraint: Justices should be reluctant to overturn the decisions of elected branches of government. Should err on the side of the democratic process, because Court has to worry about compliance with its decisions.
Activism: Court has a role to play as a “counter-majoritarian” institution.
Activism and restraint can be associated with either liberal or conservative viewpoints.
So the next time your willing to start talking out of your... please at least define your syntax, and be willing to do more than spit out pre digested political pablum and rhetoric.
Rob
[ June 29, 2005, 11:06 PM: Message edited by: ITJock ]
..."Most people who use the term don't provide a coherent definition of it. It typically means judicial opinions with which they disagree," says Randy E. Barnett, a law professor at Boston University who considers himself a libertarian and a defender of "original intent" in Constitutional matters.
Example: Shrubs State of the Union
""Because marriage is a sacred institution and the foundation of society, it should not be re-defined by activist judges. For the good of families, children, and society, I support a constitutional amendment to protect the institution of marriage. So that instead of marriage not being defined by "activist judges" ... Because a society is measured by how it treats the weak and vulnerable..." - God I still can't believe he said that in public - doesn't he have a decent speachwriter anywhere?
While I agree with Prof Barnett on original intent, I think we both agree on judicial activism, where would we be without 'activist judges'?
Without activism Marbury Vs Madison would be moot. The 3/5ths rule would still apply, Brown vs Board of E would have been struck down, we would not have Miranda, we would not have most civil rights law of the last half of the 20th C.
Certainly gay's and Lesbians would not have any real protection or rights (not that we have that many now). If it were up to no one but the majority, you and I would be in prison or hiding in a closet.
If you wish to debate the 4 different foundations of judicial decision-making (strict construction, precedent, natural law, and the Declaration of Independence) at least be prepared to extemporize intelligently.
So don't swear at "Activist Judges" unless you know what your talking about, and are ready to defend it with a coherent definition.
The unbridled antipathy so many conservatives have for this weeks 'eminent domain' decision is a case in point. If the justices had ruled the opposite, then there would have been howls from the far right about them throwing out the constitution in another way.
At its simplist (and most simplistic) it can be defined as follows.
Judicial restraint v. activism
Restraint: Justices should be reluctant to overturn the decisions of elected branches of government. Should err on the side of the democratic process, because Court has to worry about compliance with its decisions.
Activism: Court has a role to play as a “counter-majoritarian” institution.
Activism and restraint can be associated with either liberal or conservative viewpoints.
So the next time your willing to start talking out of your... please at least define your syntax, and be willing to do more than spit out pre digested political pablum and rhetoric.
Rob
[ June 29, 2005, 11:06 PM: Message edited by: ITJock ]
I got a kick out of reading this.
Critic: Seize Souter’s home: Calif. man wants hotel on justice's N.H. land
Critic: Seize Souter’s home: Calif. man wants hotel on justice's N.H. land
QUOTE
Angry at Souter's court vote last week solidifying governments' power to seize private property on behalf of private developers, Clements - CEO of the conservative Freestar Media LLC - fired off a fax the other day to Weare's code enforcement officer announcing he wants to start eminent domain proceedings against the long-time Weare resident's home.
SCOTUS refuses to revisit this ruling.
Non-CNN story here.
Justice Stevens still doesn't get it. As written in the above news article, he told a Las Vegas audience last week that the Kelo ruling was legally correct because the High Court has always given wide latitude to local governments.
First of all, he's full of shit. The Court has all too often usurped the authority of local governments, particularly when Stevens wants to. Second, the ruling cannot be legally correct if it clearly violates the 5th Amendment, which it did. The 5th Amendment's taking clause was pretty much eviscerated in that decision, no thanks to Stevens.
Non-CNN story here.
Justice Stevens still doesn't get it. As written in the above news article, he told a Las Vegas audience last week that the Kelo ruling was legally correct because the High Court has always given wide latitude to local governments.
First of all, he's full of shit. The Court has all too often usurped the authority of local governments, particularly when Stevens wants to. Second, the ruling cannot be legally correct if it clearly violates the 5th Amendment, which it did. The 5th Amendment's taking clause was pretty much eviscerated in that decision, no thanks to Stevens.
OK, you neednt take this too seriously, but it strikes me that one of the underlying problems in this judicial activism/Supreme Court debate is that the US Constitution is too short!
I have a copy of an American "World Almanac and Book of Facts" and I was amazed to find that the Constitution and Bill of Rights are only four and a half pages long (plus three pages of amendments).
To start with I thought it must just be an abridged version, but no, thats it. Now I'm a great fan of less is more but if you have a constitution that is so short its no wonder judges have a lot of leeway. The above controversy on compulsory purchase gets only a one-sentence mention in the Bill of Rights (and nothing at all in the articles of the Constitution)
"nor shall private property be taken for public use, without just compensation"
which is so vague as to mean anything - no definition of public use (is that the state or the common good), no attempt to establish some formula for lower or upper limits of compensation. Everything is left over to the discretion of those who must interpret it later.
And as for the basic legal framework for marriage, gay or otherwise, I cant see a single mention anywhere.
Maybe life was simpler 200 years ago, but countries which have drawn up constitutions more recently have chosen to construct documents which are long enough to resolve some of the most obvious "matters arising". The proposed EU constitution ran to 350 pages, which is probably excessive ("what does the constitution say about refuse collection?) but if you do want to try and cover all the angles so the judges cant "fill in the gaps" then surely the basic document has to be comprehensive, tightly-worded and even legalistic not just a statement of ideals and core-beliefs.
[ August 22, 2005, 04:04 PM: Message edited by: jamesw ]
I have a copy of an American "World Almanac and Book of Facts" and I was amazed to find that the Constitution and Bill of Rights are only four and a half pages long (plus three pages of amendments).
To start with I thought it must just be an abridged version, but no, thats it. Now I'm a great fan of less is more but if you have a constitution that is so short its no wonder judges have a lot of leeway. The above controversy on compulsory purchase gets only a one-sentence mention in the Bill of Rights (and nothing at all in the articles of the Constitution)
"nor shall private property be taken for public use, without just compensation"
which is so vague as to mean anything - no definition of public use (is that the state or the common good), no attempt to establish some formula for lower or upper limits of compensation. Everything is left over to the discretion of those who must interpret it later.
And as for the basic legal framework for marriage, gay or otherwise, I cant see a single mention anywhere.
Maybe life was simpler 200 years ago, but countries which have drawn up constitutions more recently have chosen to construct documents which are long enough to resolve some of the most obvious "matters arising". The proposed EU constitution ran to 350 pages, which is probably excessive ("what does the constitution say about refuse collection?) but if you do want to try and cover all the angles so the judges cant "fill in the gaps" then surely the basic document has to be comprehensive, tightly-worded and even legalistic not just a statement of ideals and core-beliefs.
[ August 22, 2005, 04:04 PM: Message edited by: jamesw ]
Well, at least the US has a written Constitution. Does the UK? (Yes, I know, Britain doesn't but its ancient unwritten constitution, going back to the Magna Carta, and its common law both strongly influenced the US's.)
Most other nations have had to revise their constitutions repeatedly, while the United States,' the oldest written constitution of any existing democracy, has lasted for 218 years. Many other democracies have had constitutions that failed miserably, like Weimar Germany's, or Brazil's before the Estado Novo in the 1940s.
A number of countries have based their constitutions in part on the US's short but powerful document, including France (which has had multiple constitutions since 1789), Mexico, the Phillipines, Haiti, South Africa, etc.
And in a number of nations, the overwritten constitutions have proved to be highly problematic. Mexico's post-Civil War constitution has some provisions that have not really been realized for most of its population.
Most other nations have had to revise their constitutions repeatedly, while the United States,' the oldest written constitution of any existing democracy, has lasted for 218 years. Many other democracies have had constitutions that failed miserably, like Weimar Germany's, or Brazil's before the Estado Novo in the 1940s.
A number of countries have based their constitutions in part on the US's short but powerful document, including France (which has had multiple constitutions since 1789), Mexico, the Phillipines, Haiti, South Africa, etc.
And in a number of nations, the overwritten constitutions have proved to be highly problematic. Mexico's post-Civil War constitution has some provisions that have not really been realized for most of its population.
QUOTE
jamesw:
OK, you neednt take this too seriously, but it strikes me that one of the underlying problems in this judicial activism/Supreme Court debate is that the US Constitution is too short!
Actually the US Constitution is short by design. The framers of the constitution wanted to codify only those things that they thought were absolutely essential, and could get all the different groups to agree upon. They wanted broad, general legal principles that would cover the most important aspects of self government: protection for minorities against the tyranny of the central governmant or by the majority.OK, you neednt take this too seriously, but it strikes me that one of the underlying problems in this judicial activism/Supreme Court debate is that the US Constitution is too short!
The Founders were deathly afraid of instituting a new strong central government - which they believed would inevitably lead to a diminishment of their rights - like the one they had just overthrown.
They wanted simple clear language regarding delegating power to the Federal Republic and stating exactly what the new government could do.
There was actually a great deal of resistance to the 'Bill of Rights' because many at the C Convention did not want it to seem as if those were the only rights Americans had.
This was in fact the impetus for a change in the Bill of Rights - one extra amendment was added at almost the last minute:
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
It is clear from the Federalist Papers as well as the writings of those present that they wanted a very limited government; they enumerated what it could do, and left EVERYTHING else up to the individual States, or to the people themselves.
Actually the most famous Failure of a Constitution based on the US model and the French 'Declaration of the Rights of Man' is the one most people forget. It was light years ahead of its time in its attempts to cover every eventuality from medical and child care to education and old age pensions. It carefully enumerated dozens of specific rights, all those in both of the above documents and more, including one of the most hotly contested debates about the US Con. It stated :
Article 56 [Privacy]
The privacy of citizens, and of their correspondence, telephone
conversations, and telegraphic communications is protected by law.
Yet another Article dealt with Environmental Conservation:
Article 67 [Protection of Nature]
Citizens are obliged to protect nature and conserve its riches.
The Name of the document and the society that created it? The document was simply titled:
Constitution of the RSFSR
Adopted by the Fifth All-Russia Congress of Soviets
10 July 1918
Rob
[ August 22, 2005, 10:10 PM: Message edited by: ITJock ]
QUOTE
ITJock:
It is clear from the Federalist Papers as well as the writings of those present that they wanted a very limited government; they enumerated what it could do, and left EVERYTHING else up to the individual States, or to the people themselves.
Rob
And SCOTUS has made sure the 10th (and 9th) Amendments have been rendered moot. Sad.
It is clear from the Federalist Papers as well as the writings of those present that they wanted a very limited government; they enumerated what it could do, and left EVERYTHING else up to the individual States, or to the people themselves.
Rob
QUOTE
MIB:
Very True. IMO also the 4th, 5th, and 6th as well.QUOTE
ITJock:
It is clear from the Federalist Papers as well as the writings of those present that they wanted a very limited government; they enumerated what it could do, and left EVERYTHING else up to the individual States, or to the people themselves.
Rob
And SCOTUS has made sure the 10th (and 9th) Amendments have been rendered moot. Sad. It is clear from the Federalist Papers as well as the writings of those present that they wanted a very limited government; they enumerated what it could do, and left EVERYTHING else up to the individual States, or to the people themselves.
Rob
I believe it was the current POTUS and Congress who have done the most harm however.
OMFG - MIB and I agree on Something.
"The World is Turned Upside Down"
Rob
[ August 22, 2005, 10:22 PM: Message edited by: ITJock ]
QUOTE
ITJock:
Very True. IMO also the 4th as well as portions of others.
OMFG - MIB and I agree on Something.
\"The World is Turned Upside Down\"
Rob
Feels good, doesn't it? You are on the path from the Dark Side. Come closer. The water of pragmatism and common sense is quite warm here. Very True. IMO also the 4th as well as portions of others.
OMFG - MIB and I agree on Something.
\"The World is Turned Upside Down\"
Rob
Don't push it.
I seriously doubt if we interpret things the same way.
But have a good day.
R
[ August 22, 2005, 10:35 PM: Message edited by: ITJock ]
I seriously doubt if we interpret things the same way.
But have a good day.
R
[ August 22, 2005, 10:35 PM: Message edited by: ITJock ]
I never push. A gentle tug is often good enough. wink
fantomas - The incorporation of the European Convention on Human Rights into British law has effectively given us an equivalent of the Bill of Rights. The politicians dont much like it because judges can render parts of Acts of Parliament unlawful. The Conservatives are moving towards a position where they will call for its repeal as an infringement of parliamentary sovereignty - the right of Parliament to pass pretty much any law it likes.
As regards those parts of the US constitution which govern the relationship between the different levels of government, we have no equivalent. When Mrs Thatcher had a run-in with the Greater London Council in the 1980's she simply abolished it by act of parliament. A bit like if President Bush got fed up with Massachussetts and rushed a bill through Congress to abolish it.
ITJock - I take your point about the writers of the constitution wanting to leave things to the individual states. Do the states have constitutions too? Are they more comprehensive?
fantomas and ITJock, I was only thinking aloud but I would just pick up on one point you made. You both implied that it was somehow better to have a long-lasting constitution rather than lots of short-lived ones. But one could argue that its better to have a clean sweep every generation or two and start again "tabula rasa". All institutions get set in their ways without an enforced shake-up from time to time and that may apply to governance as much as to business, for example. Those countries which have been lucky enough to avoid major crises can often get stuck in their traditional ways - after all, the last western country to give the vote to women was Switzerland.
I didnt start off this with the idea of having a go so dont take this amiss, but perhaps the question boils down to this. Americans (and most of the world) sometimes make fun of the British system as being so antiquated because some of our institutions and conventions go back to the Middle Ages. And I dont disagree. But some of your "stuff" goes back 200 years now. Thats pretty old too. At what point will the American set-up as designed by the Founding Fathers have become antiquated? 200 years, 300, 500?
As regards those parts of the US constitution which govern the relationship between the different levels of government, we have no equivalent. When Mrs Thatcher had a run-in with the Greater London Council in the 1980's she simply abolished it by act of parliament. A bit like if President Bush got fed up with Massachussetts and rushed a bill through Congress to abolish it.
ITJock - I take your point about the writers of the constitution wanting to leave things to the individual states. Do the states have constitutions too? Are they more comprehensive?
fantomas and ITJock, I was only thinking aloud but I would just pick up on one point you made. You both implied that it was somehow better to have a long-lasting constitution rather than lots of short-lived ones. But one could argue that its better to have a clean sweep every generation or two and start again "tabula rasa". All institutions get set in their ways without an enforced shake-up from time to time and that may apply to governance as much as to business, for example. Those countries which have been lucky enough to avoid major crises can often get stuck in their traditional ways - after all, the last western country to give the vote to women was Switzerland.
I didnt start off this with the idea of having a go so dont take this amiss, but perhaps the question boils down to this. Americans (and most of the world) sometimes make fun of the British system as being so antiquated because some of our institutions and conventions go back to the Middle Ages. And I dont disagree. But some of your "stuff" goes back 200 years now. Thats pretty old too. At what point will the American set-up as designed by the Founding Fathers have become antiquated? 200 years, 300, 500?
Jamesw, You Brits might want to dust off some of those old statutes dating from Henry III-VIII dealing with praemunire, or the supremacy of English, as opposed to foreign, law. However well-intentioned, the ECHR is an intrusion on national sovereignty, which may have once been a worthy goal, but one which certainly merits reassessment in light of 9-11 and the London bombings.
Yes, individual American states have their own constitutions, which may or may not grant more protections that does our federal one. Thus, California's has an express right to privacy in it. This way, some citizens can pick and choose where to live or under which constitution to assert their rights.
As one who majored in English Constitutional History in college, I've nothing but admiration for your system, although its relative informality at times can be bewildering. Please don't tinker too much with something that's served you and the world so well for nearly a thousand years!
Yes, individual American states have their own constitutions, which may or may not grant more protections that does our federal one. Thus, California's has an express right to privacy in it. This way, some citizens can pick and choose where to live or under which constitution to assert their rights.
As one who majored in English Constitutional History in college, I've nothing but admiration for your system, although its relative informality at times can be bewildering. Please don't tinker too much with something that's served you and the world so well for nearly a thousand years!
And can we get it right? It is NOT "The Magna Carta." There is no "the" in Magna Carta.
Thus endeth today's lesson.
[ August 23, 2005, 06:44 PM: Message edited by: MIB ]
Thus endeth today's lesson.
[ August 23, 2005, 06:44 PM: Message edited by: MIB ]
JamesW -
Yes, The individual States do have their own constitutions. Some are more complex than others depending on when they were written, and what their individual framers were concerned about at the time they were drafted.
"I was only thinking aloud but I would just pick up on one point you made. You both implied that it was somehow better to have a long-lasting constitution rather than lots of short-lived ones. But one could argue that its better to have a clean sweep every generation or two and start again "tabula rasa". All institutions get set in their ways without an enforced shake-up from time to time and that may apply to governance as much as to business, for example. Those countries which have been lucky enough to avoid major crises can often get stuck in their traditional ways - after all, the last western country to give the vote to women was Switzerland."
In my opinion people will stick with even the worst of governments until such time as it is found totally un workable, corrupt, or overly authoritarian.
I think if you look at those countries that have had multiple changes of constitutions you will find extensive socio- economic upheaval preceded the changes by a predictable degree, yet the governments held on to their power until utterly exhausted.
The US does have a codified Constitution. Although (entrenched) codified constitutions are rigid in comparison to (un-entrenched) uncodified constitutions, codified constitutions still typically yield a potentially wide range of interpretations by constitutional courts.
I would argue that our Constitution is a fluid and dynamic document. In law, loose constructionism is an ideology that allows for interpretation of the Constitution in the broadest sense, as opposed to strict constructionism which reasons that the Constitution should be interpreted literally. The debate between the two views centers on whether courts that interpret the meaning of the Constitution are engaged in their proper judicial function.
MIB would I think argue for strict constructionism. In the US, those who support judicial decisions being made solely on the original text of the constitution, without considering "implied" principles, are called "strict constructionists". Strict constructionism is a philosophy of judicial interpretation and legal philosophy that holds to the meanings of words and phrases as used when they were written down. Adherents look strictly at the text in question rather than relying on metaphysical ideas such as natural law, or by trying to glean legislative intent from contemporaneous commentaries or legislative debate
In the context of U.S. Constitutional interpretation, originalism is a family of theories which share the starting point that a Constitution (or statute) does not evolve in meaning, but rather, has a fixed and knowable meaning, which should be adhered to by Judges. A neologism, "originalism" is similar to legalist traditionalism, and is popular among U.S. political conservatives; some opponents have charged that it is merely a form of Judicial Activism.
The term originalism refers to two distinctly different ideas: One version, known as original intent, is the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it. The other version, known as original meaning, or textualism, is the view that interpretation of a written constitution should be based on what it would commonly have been understood to mean by reasonable persons living at the time of its ratification.
Judicial Activism, or restraint are often used in conjunction with the above terms more as political epithets depending upon how a court applies constructionism.
Those who label judges as "judicial activists" believe them to be subverting the democratic process.
Judicial restraint is a judical philosophy which believes in the limited exercise of judicial powers. Jurists practicing judicial restrain have been described as "strict constructionist," "interpretivist," and "textualist".
However, in practice, judges are accused of "judicial activism" irrespective of their political alignment. Usually by the opponents of any particular judicial decision.
SHHHHH- if all that were not confusing enough...
Our constitution changes all the time through 'Amendment' of the Constitution whever two thirds of the states can agree on a change. (VAST OVERSIMLIFICATION).
Sigghh...
I believe our current constitution will be around for as long as it evolves to meet the needs of the people, and not a moment longer.
Strangely, your views were shared by some of the framers of the US Constitution... many believed at the time that it would be a short lived document lasting only a generation or two.
Rob
Yes, The individual States do have their own constitutions. Some are more complex than others depending on when they were written, and what their individual framers were concerned about at the time they were drafted.
"I was only thinking aloud but I would just pick up on one point you made. You both implied that it was somehow better to have a long-lasting constitution rather than lots of short-lived ones. But one could argue that its better to have a clean sweep every generation or two and start again "tabula rasa". All institutions get set in their ways without an enforced shake-up from time to time and that may apply to governance as much as to business, for example. Those countries which have been lucky enough to avoid major crises can often get stuck in their traditional ways - after all, the last western country to give the vote to women was Switzerland."
In my opinion people will stick with even the worst of governments until such time as it is found totally un workable, corrupt, or overly authoritarian.
I think if you look at those countries that have had multiple changes of constitutions you will find extensive socio- economic upheaval preceded the changes by a predictable degree, yet the governments held on to their power until utterly exhausted.
The US does have a codified Constitution. Although (entrenched) codified constitutions are rigid in comparison to (un-entrenched) uncodified constitutions, codified constitutions still typically yield a potentially wide range of interpretations by constitutional courts.
I would argue that our Constitution is a fluid and dynamic document. In law, loose constructionism is an ideology that allows for interpretation of the Constitution in the broadest sense, as opposed to strict constructionism which reasons that the Constitution should be interpreted literally. The debate between the two views centers on whether courts that interpret the meaning of the Constitution are engaged in their proper judicial function.
MIB would I think argue for strict constructionism. In the US, those who support judicial decisions being made solely on the original text of the constitution, without considering "implied" principles, are called "strict constructionists". Strict constructionism is a philosophy of judicial interpretation and legal philosophy that holds to the meanings of words and phrases as used when they were written down. Adherents look strictly at the text in question rather than relying on metaphysical ideas such as natural law, or by trying to glean legislative intent from contemporaneous commentaries or legislative debate
In the context of U.S. Constitutional interpretation, originalism is a family of theories which share the starting point that a Constitution (or statute) does not evolve in meaning, but rather, has a fixed and knowable meaning, which should be adhered to by Judges. A neologism, "originalism" is similar to legalist traditionalism, and is popular among U.S. political conservatives; some opponents have charged that it is merely a form of Judicial Activism.
The term originalism refers to two distinctly different ideas: One version, known as original intent, is the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it. The other version, known as original meaning, or textualism, is the view that interpretation of a written constitution should be based on what it would commonly have been understood to mean by reasonable persons living at the time of its ratification.
Judicial Activism, or restraint are often used in conjunction with the above terms more as political epithets depending upon how a court applies constructionism.
Those who label judges as "judicial activists" believe them to be subverting the democratic process.
Judicial restraint is a judical philosophy which believes in the limited exercise of judicial powers. Jurists practicing judicial restrain have been described as "strict constructionist," "interpretivist," and "textualist".
However, in practice, judges are accused of "judicial activism" irrespective of their political alignment. Usually by the opponents of any particular judicial decision.
SHHHHH- if all that were not confusing enough...
Our constitution changes all the time through 'Amendment' of the Constitution whever two thirds of the states can agree on a change. (VAST OVERSIMLIFICATION).
Sigghh...
I believe our current constitution will be around for as long as it evolves to meet the needs of the people, and not a moment longer.
Strangely, your views were shared by some of the framers of the US Constitution... many believed at the time that it would be a short lived document lasting only a generation or two.
Rob
QUOTE
ITJock:
I would argue that our Constitution is a fluid and dynamic document.
That's what I believe is the major problem. To consider it such a fluid and dynamic document relegates the Congress to a branch of government subservient to the others, particularly the Supreme Court. If one considers this document to be flexible, fluid, changing, etc., it politicizes the Supreme Court. This is a seriously flawed way to view it. It also means you therefore must consider the 9th and 10th amendments irrelevant, for everything else is left to the courts.I would argue that our Constitution is a fluid and dynamic document.
Viewing the Constitution as a document that does NOT change with the times--the People through the amendment process are the ones solely charged with changing it--means you are someone who realizes that the Constitution is a document that is designed to restrict the powers of the federal government and not grant everyone else powers. It also means that you are a person who believes the 9th and 10th amendments are extremely important and relevant.
When in doubt, leave it to the People and not the courts. That is the foundation on which our nation was founded.
JamesW -
This is the primary place where MIB and I differ. While we both believe in Judicial Restraint - to some degree, I believe in loose constructionism.
Without SCOTUS taking initiative to reinterpret certain parts of the Constitution we would never have had Marbury, abolished Slavery,etc. There are many high profile cases in which the courts have expanded individual liberties by overriding state laws, as in Brown v. Board of Education, Roe v. Wade, and Lawrence v. Texas. However, this approach is often in conflict with the position of strict constructionists
Most of the criticism of judicial activism in the American media focuses on liberal judges. In response, it is pointed out that conservative judges have a long history of judicial activism, citing alleged activism in the 19th century endowment of corporations with the same rights as individual citizens, and encompassing Dred Scott v. Sandford, the notorious decision which held that blacks could not be citizens of the United States and ruled unconstitutional the Missouri Compromise of 1820's prohibition of slavery in American Territories despite the Justice's conclusion that the federal courts lacked jurisdiction in the case.
Those who worry about politicising the court , IMO, fail to realize that it has always been political. That in fact whenever there is an opening on the court there is a huge political power play to dtermine the future of SCOTUS decisions.
There is disagreement among critics of judicial activism about the best solution. For example, Charles Krauthammer, who considers judicial activism "undemocratic" and "politically crazy" over the long term, also condemns the "delirious" attacks on judges by Tom DeLay, and John Cornyn as a threat to separation of powers and judicial independence, which he sees as one of the most important aspects of U.S. democracy, though he believes their threats may make judges more humble.
In the past Justices have been appointed based upon their tendencies to the above, then immediately turned around and become either more or less activist to the chagrin of their supporters.
In many instances those conservatives most critical of 'Activist Judges' are those who have benefited most from their decisions, as in the case of Bush v. Gore.
ALL three branches of the gov't are supposed to be equal, balancing the others. We are in the middle of an era when the Congress is extremely strong, and reaching for even more power. Therefore the criticisms of the other two branches, but especially of SCOTUS.
In truth the pendulum swings back and forth every generation as the court trys to curb the excesses of past generations.
And the debate goes on as we look at filling court seats this time around.
MIB's arguments about the 9th and 10th Amend. I will answer tmrw.
Sigh...
R
If you think you are confused - just imagine what the average American who knows little about these almost incomprehensible issues feels like!
[ August 24, 2005, 04:04 AM: Message edited by: ITJock ]
This is the primary place where MIB and I differ. While we both believe in Judicial Restraint - to some degree, I believe in loose constructionism.
Without SCOTUS taking initiative to reinterpret certain parts of the Constitution we would never have had Marbury, abolished Slavery,etc. There are many high profile cases in which the courts have expanded individual liberties by overriding state laws, as in Brown v. Board of Education, Roe v. Wade, and Lawrence v. Texas. However, this approach is often in conflict with the position of strict constructionists
Most of the criticism of judicial activism in the American media focuses on liberal judges. In response, it is pointed out that conservative judges have a long history of judicial activism, citing alleged activism in the 19th century endowment of corporations with the same rights as individual citizens, and encompassing Dred Scott v. Sandford, the notorious decision which held that blacks could not be citizens of the United States and ruled unconstitutional the Missouri Compromise of 1820's prohibition of slavery in American Territories despite the Justice's conclusion that the federal courts lacked jurisdiction in the case.
Those who worry about politicising the court , IMO, fail to realize that it has always been political. That in fact whenever there is an opening on the court there is a huge political power play to dtermine the future of SCOTUS decisions.
There is disagreement among critics of judicial activism about the best solution. For example, Charles Krauthammer, who considers judicial activism "undemocratic" and "politically crazy" over the long term, also condemns the "delirious" attacks on judges by Tom DeLay, and John Cornyn as a threat to separation of powers and judicial independence, which he sees as one of the most important aspects of U.S. democracy, though he believes their threats may make judges more humble.
In the past Justices have been appointed based upon their tendencies to the above, then immediately turned around and become either more or less activist to the chagrin of their supporters.
In many instances those conservatives most critical of 'Activist Judges' are those who have benefited most from their decisions, as in the case of Bush v. Gore.
ALL three branches of the gov't are supposed to be equal, balancing the others. We are in the middle of an era when the Congress is extremely strong, and reaching for even more power. Therefore the criticisms of the other two branches, but especially of SCOTUS.
In truth the pendulum swings back and forth every generation as the court trys to curb the excesses of past generations.
And the debate goes on as we look at filling court seats this time around.
MIB's arguments about the 9th and 10th Amend. I will answer tmrw.
Sigh...
R
If you think you are confused - just imagine what the average American who knows little about these almost incomprehensible issues feels like!
[ August 24, 2005, 04:04 AM: Message edited by: ITJock ]
Why did I ever get into this? LOL
Actually your explanations are commendably clear.
The tension you describe applies in all countries, I'm sure.
I remember Chancellor Kohl proposing a bill which everyone told him would be unconstitutional (on abortion?) and simply saying that it was 20 years since that ruling and the Constitutional Court might have a different view now.
Judges here are not supposed to try and guess what the intention of Parliament was when a particular piece of legislation was passed. But that's not to say they don't do so, much to the annoyance of ministers. For example, last year, after a new law making it illegal for asylum-seekers to work while their cases were being processed, a judge re-inststated the benefits of a family in defiance of the wording of the law on the grounds thatParliament "couldnt have meant" them to starve. (He was also able to find a judgment fron the Napoleonic Wars where the seaside town of Eastbourne was compelled by the courts to pay for food and shelter for French refugees and deserters).
I agree new constitutions happen after some great upheaval - my question really was should one re-invent them periodically (pre-emptively) as a matter of course even if one lives in quiet times?
I'm interested that you say that Congress is currently strong. From afar, it does seem that US administrations have undue difficulty in getting their new laws through. Clinton was unable to do so on healthcare and Reagan/Bush Snr implemented far less of the New Right shopping-list than Mrs Thatcher or the then New Zealand Govt did. Even when one party controls both the Presidency and Congress, as now, the party wonks' ideas dont seem to get passed semi-automatically into law in the way a Briton would expect. The famous "elective dictatorship" that we have. I'm not saying this is always a bad thing - perhaps you are saved from too much experimentation.
I agree with MIB that legislation is preferable to judicial re-interpretation but the greater difficulty of getting new legislation through - let alone amending the constitution - in a system with so many checks and balances must be a real stumbling-block to doing that. On controversial, esp moral, issues the temptation for politicians must be to go via the back door. Change the balance of the Supreme Court and let things take their couse there rather than take all the flak yourself.
gmginsfo, national sovereignty is one where I'm in the "don't know" category. We have always lived in a multi-national kingdom; if my fate can be decided by Scottish politicians or Welsh judges, I dont personally find it too great a step to having Belgians or Spaniards doing so. But some people disagree completely.
Generally I believe in the infamous subsidiarity (competence should be assigned to the lowest, most local, level of government capable of performing a given function) but in a globalised world (blah-blah) I think its clear that there are many issues which cannot be dealt with effectively at the national level. You need a level above that. So I have no problem with some such supra-national institutions having full, enforcable legal powers to do their job properly - in my view thats preferable to the alternative, which is inter-governmental cooperation. But thats another debate.
On the specific point of the ECHR it is a document which was written (a lot of it by British jurists in fact) for different times and is certainly in need of an overhaul IMO on matters relating to terrorism and refugee status (which brings us back neatly to where we started!). But the flood of controversial rulings which its detractors predicted (e.g., on parent v child issues) before its adoption never materialised, so it looks as if judges are being cautious with it. I would have more time for the right-wingers in Britain who rubbished the ECHR if they had suggested some "made in Britain" alternative. But they were so wrapped up in being anti-anything with the word "European" in it that they scarcely bothered to debate the substantive issue of what particular rights we should/shouldnt have.
[ August 24, 2005, 05:27 PM: Message edited by: jamesw ]
Actually your explanations are commendably clear.
The tension you describe applies in all countries, I'm sure.
I remember Chancellor Kohl proposing a bill which everyone told him would be unconstitutional (on abortion?) and simply saying that it was 20 years since that ruling and the Constitutional Court might have a different view now.
Judges here are not supposed to try and guess what the intention of Parliament was when a particular piece of legislation was passed. But that's not to say they don't do so, much to the annoyance of ministers. For example, last year, after a new law making it illegal for asylum-seekers to work while their cases were being processed, a judge re-inststated the benefits of a family in defiance of the wording of the law on the grounds thatParliament "couldnt have meant" them to starve. (He was also able to find a judgment fron the Napoleonic Wars where the seaside town of Eastbourne was compelled by the courts to pay for food and shelter for French refugees and deserters).
I agree new constitutions happen after some great upheaval - my question really was should one re-invent them periodically (pre-emptively) as a matter of course even if one lives in quiet times?
I'm interested that you say that Congress is currently strong. From afar, it does seem that US administrations have undue difficulty in getting their new laws through. Clinton was unable to do so on healthcare and Reagan/Bush Snr implemented far less of the New Right shopping-list than Mrs Thatcher or the then New Zealand Govt did. Even when one party controls both the Presidency and Congress, as now, the party wonks' ideas dont seem to get passed semi-automatically into law in the way a Briton would expect. The famous "elective dictatorship" that we have. I'm not saying this is always a bad thing - perhaps you are saved from too much experimentation.
I agree with MIB that legislation is preferable to judicial re-interpretation but the greater difficulty of getting new legislation through - let alone amending the constitution - in a system with so many checks and balances must be a real stumbling-block to doing that. On controversial, esp moral, issues the temptation for politicians must be to go via the back door. Change the balance of the Supreme Court and let things take their couse there rather than take all the flak yourself.
gmginsfo, national sovereignty is one where I'm in the "don't know" category. We have always lived in a multi-national kingdom; if my fate can be decided by Scottish politicians or Welsh judges, I dont personally find it too great a step to having Belgians or Spaniards doing so. But some people disagree completely.
Generally I believe in the infamous subsidiarity (competence should be assigned to the lowest, most local, level of government capable of performing a given function) but in a globalised world (blah-blah) I think its clear that there are many issues which cannot be dealt with effectively at the national level. You need a level above that. So I have no problem with some such supra-national institutions having full, enforcable legal powers to do their job properly - in my view thats preferable to the alternative, which is inter-governmental cooperation. But thats another debate.
On the specific point of the ECHR it is a document which was written (a lot of it by British jurists in fact) for different times and is certainly in need of an overhaul IMO on matters relating to terrorism and refugee status (which brings us back neatly to where we started!). But the flood of controversial rulings which its detractors predicted (e.g., on parent v child issues) before its adoption never materialised, so it looks as if judges are being cautious with it. I would have more time for the right-wingers in Britain who rubbished the ECHR if they had suggested some "made in Britain" alternative. But they were so wrapped up in being anti-anything with the word "European" in it that they scarcely bothered to debate the substantive issue of what particular rights we should/shouldnt have.
[ August 24, 2005, 05:27 PM: Message edited by: jamesw ]
QUOTE
ITJock:
Without SCOTUS taking initiative to reinterpret certain parts of the Constitution ...
Reinterpret? If the Constitution says exactly what it said 100 years ago about a certain issue, how in the world can judges "reinterpret" it? To reinterpret it means it has absolutely no solid foundation and is therefore rendered impotent.Without SCOTUS taking initiative to reinterpret certain parts of the Constitution ...
Let's use an example--the 8th amendment's proscription on "cruel and unusual punishment." In the 1800's, with capital punishment being quite the rage, SCOTUS says it's constitutional (forget that the Constitution elsewhere specifically permits it). In the early 1900's, the mood in the nation turns against capital punishment so SCOTUS now says the 8th amendment prohibits capital punishment. As the 21st century dawns, the mood swings back toward capital punishment--a "law and order" society in a sense. Now the Court says it's constitutional.
All that is done with NO modification of this great document--no amendments, nothing. The Court has bastardized the Constitution and emasculated it by its "reinterpretations" of something that remained unchanged.
BTW, we should never have had Roe, since it was the worst decision SCOTUS ever made constitutionally speaking. Just ask constitutional expert and admitted pro-abortionist John Hart Ely. Whenever a decision is made based on the "emanations of the penumbra," we know it's baseless.
If the people of this nation wish for a change to the Constitution, our Founders provided for a very specific and single way of doing this: via the amendment process and NOT via the federal judiciary, which is why the Congress was left with the ultimate power of removing from the jurisdiction of the judiciary any purview the Congress would choose.
The Founders also made the amending process rather intentionally difficult because they did not want or believe the Constitution should be subjected to shifting emotional whims of the People, something that is done by the courts all too often--yet another reason why the courts must not "reinterpret" the Constitution based on changing times.
MIB, while I admired the principled stance, are you also willing to strike down Lawrence v. Texas as well? If you don't like Roe or substantive due process generally, I don't see how you could uphold Lawrence. As I've written before, I'm not comfortable with the idea of allowing state legislatures to decide whether two guys or gals can can get it on in the privacy of their own homes.
Furthermore, how do you reconcile your distaste of judicial activism with Brown v. Board? I'm sure the George Wallaces and Strom Thurmands (at least pre-1990) of the world would say that SCOTUS was engaging in activism in Brown--and frankly, I'm glad that the court there was step ahead of the nation there.
Conversely, my fear is that a Supreme Court that is perfectly in line with the whims and sentiments of the general public will give opinions that end up entrenching discimination or bad social policy. Plessy v. Ferguson [which for the non-lawyers among us upheld segregation in public accomodations] was a disasterous opinion that set the US back. Are you willing to live with the possibility of such consequences?
MIB, you could engage my points and argue the merits. Or you could ignore me. Or say that I have no clue (too bad I no longer have a bar exam to rattle me). Ball is in your court, judge.
Furthermore, how do you reconcile your distaste of judicial activism with Brown v. Board? I'm sure the George Wallaces and Strom Thurmands (at least pre-1990) of the world would say that SCOTUS was engaging in activism in Brown--and frankly, I'm glad that the court there was step ahead of the nation there.
Conversely, my fear is that a Supreme Court that is perfectly in line with the whims and sentiments of the general public will give opinions that end up entrenching discimination or bad social policy. Plessy v. Ferguson [which for the non-lawyers among us upheld segregation in public accomodations] was a disasterous opinion that set the US back. Are you willing to live with the possibility of such consequences?
MIB, you could engage my points and argue the merits. Or you could ignore me. Or say that I have no clue (too bad I no longer have a bar exam to rattle me). Ball is in your court, judge.
No, I won't ignore you, neptune. You raise valid questions. As Gov. Ahnuld would say, "I'll be back."
MIB, just for the record, when you refer to the document known as "Magna Carta," it is perfectly fine to use the definite article "the," which would have been appropriate in the original Medieval Latin. (Illa Magna Carta.) Classical Latin did not have a definite article, but Medieval writers used both "ille" and "quidam" at times to approximate what became the definite article in the Romance languages. So "the Magna Carta" is perfectly appropriate, and it has been so referenced in English-language texts for hundreds of years.
[ August 24, 2005, 09:44 PM: Message edited by: fantomas ]
[ August 24, 2005, 09:44 PM: Message edited by: fantomas ]
It is properly referred to as "Magna Carta." A rather liberal individual educated me on the fact that the "the" had been put in there but was never the proper title.
Actually, if you are trying to use proper English syntax...
"The Magna Carta " is inappropriate because of the definate article appearing within the quotation marks as part of the quoted original source; unless of course the writer was quoting someone who were themselves incorrect.
The more appropriate English syntax might be [the "Magna Carta"].
R
BTW - The US is not the oldest funtioning Constitution in the world. The oldest functioning written constitution of government is the Constitution of the Commonwealth of Massachusetts, written in 1780. The US Constitution was not ratified until 1789.
[ August 25, 2005, 06:23 AM: Message edited by: ITJock ]
"The Magna Carta " is inappropriate because of the definate article appearing within the quotation marks as part of the quoted original source; unless of course the writer was quoting someone who were themselves incorrect.
The more appropriate English syntax might be [the "Magna Carta"].
R
BTW - The US is not the oldest funtioning Constitution in the world. The oldest functioning written constitution of government is the Constitution of the Commonwealth of Massachusetts, written in 1780. The US Constitution was not ratified until 1789.
[ August 25, 2005, 06:23 AM: Message edited by: ITJock ]
As far as oldest, I believe people are referring to a country's constitution and not a state's, which is why the U.S. Constitution is often regarded as the world's oldest, the implication being the oldest of any nation of the world.
I will never understand why, if judges actually decide something based on their reading of the Constitution, they are suddenly activist (if you don't like the answer). If it's all black and white as some people claim, can't we just get a computer program, feed in MIB's logorithim, and get the answers we need?
Do we need the Supreme Court at all if there's nothing to decide? No grey answers, no thinking required.
Of course, as ideas and times evolve, there must be changes in the way the document is interpreted. Events and public sentiment change as we progress, and so should and do our justices as members, albeit remote ones, of our society.
That just seems so obvious to me.
Do we need the Supreme Court at all if there's nothing to decide? No grey answers, no thinking required.
Of course, as ideas and times evolve, there must be changes in the way the document is interpreted. Events and public sentiment change as we progress, and so should and do our justices as members, albeit remote ones, of our society.
That just seems so obvious to me.
QUOTE
dinger:
I will never understand why, if judges actually decide something based on their reading of the Constitution, they are suddenly activist (if you don't like the answer). If it's all black and white as some people claim, can't we just get a computer program, feed in MIB's logorithim, and get the answers we need?
Do we need the Supreme Court at all if there's nothing to decide? No grey answers, no thinking required.
Of course, as ideas and times evolve, there must be changes in the way the document is interpreted. Events and public sentiment change as we progress, and so should and do our justices as members, albeit remote ones, of our society.
That just seems so obvious to me.
Except that there is nothing in the Constitution that even remotely permits this. I will never understand why, if judges actually decide something based on their reading of the Constitution, they are suddenly activist (if you don't like the answer). If it's all black and white as some people claim, can't we just get a computer program, feed in MIB's logorithim, and get the answers we need?
Do we need the Supreme Court at all if there's nothing to decide? No grey answers, no thinking required.
Of course, as ideas and times evolve, there must be changes in the way the document is interpreted. Events and public sentiment change as we progress, and so should and do our justices as members, albeit remote ones, of our society.
That just seems so obvious to me.
If something is written and says 2+2=4, this remains 4 regardless of someone's views changing 50 or 100 years from now.
Remember, too, that it was the Supreme Court itself that said they had the sole duty to interpret laws. Recall Marbury v. Madison when Chief Justice Marshall found this power and thus began 200 years of the federal judiciary being the sole determiner of what is and what is not constitutional.
If you want the Constitution to say something one year and something different the next, without its words changing, then the whole document itself is meaningless and worthless and ought to be trashed. Why even have one then?
Amend it. Period.
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