Activist Judges

Talk about a buzz word!  The phrase 'activist judges' is a real hoot!  The judges are not activist, they are just political appointees who act as their own independent legislature.  The issue is not that a judge is 'activist' it is that the judges are political.  There was once a time when the judiciary was far less influenced by politics, there were few published decisions that one could read and truly see an expression of opinion not law.  When those cases happened, Law Review articles bloomed and a public outcry ensued.  Today the fact is that laws are being created and written by members of the judiciary not elected legislators.

Only members of the MSM like Howard Kurtz, and liberals who can't win an election (so have no other way to pass legislation they like), appreciate what is happening today in the judiciary.  Kurtz, who stopped being coherent long ago, appears to have skipped his eighth grade civics classes.  He writes in response to Jonah Goldberg's column:

"But aren't judges supposed to be independent? And wasn't it Republicans who stepped in when judges in the Schiavo case ruled in "flagrant defiance" of what DeLay and company wanted?"

Lets help the guy out just a bit...it is legislatures that write laws.  Repeat after me Howard...

"I'm just a bill,
yes, I'm only a bill,
and I'm sitting here on Capitol Hill,
Well, it's a long, long journey
to the Capitol City,
It's a long, long wait
while I'm sitting in committee,
But I know I'll be a law someday,
At least I hope and pray that I will,
But today I'm still just a bill.

I'm just a bill,
yes I'm only a bill,
and I got as far as Capitol Hill.
Well now I'm stuck in committee
and I sit here and wait
While a few key congressmen
discuss and debate
whether they should
let me be a law,
how I hope and pray that they will,
but today I am still just a bill.

I'm just a bill,
yes I'm only a bill,
and if they vote for me on Capitol Hill,
well then I'm off to the White House
Where I'll wait in a line
with a lot of other bills
For the president to sign.
And if he signs me then I'll be a law.
How I hope and pray that he will,
but today I am still just a bill. (Spoken:)
Congressman: He signed you, Bill! Now you're a law!

Now Howard should at least remember this song...it was from the famous Saturday morning cartoon series School House Rock.  No person Howard's age can not remember that famous series.  We all watched it.

Notice that the bill is on Capitol Hill...where the legislature meets.  This is because our constitution divides the power to create laws between two branches of government, the Executive Branch and the Legislative Branch.  At no point does the Judicial Branch have the ability to create laws...unless a judge decides that he or she doesn't like the law...

Today that poor bill that wants to be a law can just skip Capitol Hill altogether and go directly to a special interest group who will file a lawsuit.  Then the bill works its way through the courts until an activist judge 'interprets' the existing law to include the bill.  That is how Bills become laws today.  It is a surrogate legislative process.

Take the question of whether a State can allow the execution of juveniles.  Regardless of what you think of the issue, it is awfully hard not to acknowledge that the practice was 'legal' and 'constitutional' in this country for many years.  That said, if the public does not like it anymore, the way to change it is by passing a law through the Legislative Branch, not re-interpreting the Constitution to decide if it is 'unconstitutional'.  But what do you do if you don't like the law, but can't win enough seats in the legislature to pass a different law?  You use the surrogate legislative process.  This case presented such a naked judicial power grab that is was nothing short of shocking.

The Supreme Court had previously decided that juveniles could be executed for their crimes.  They just recently decided that no, that practice was unconstitutional.  What changed?  Simple answer, Justice Kennedy changed his mind.  He justified his change of mind by pointing to 'international law' and the fact that 5 states had passed laws since their previous decision, changing the law in those states to no longer permit the execution of juveniles.  That brought the total number of States to...19.  50 from 19 is 31.  31 states permitted the execution of juveniles.  Almost a 2/3rds supra-majority.  No matter, Justice Kennedy disagreed with the citizens of those states and he is the only person who matters.

Now I do not support the execution of juveniles, but I am profoundly disturbed by this decision.  It is clear that when an elected body pass a law, the people have the ability to hold them accountable for it.  That is the very essense of Democracy.  If the people do not like a particular law, they can vote in politicians who say they will do something about it.  We can do almost nothing to hold a Judge accountable for 'passing a law' in the guise of a legal decision.  When laws are passed by a non-elected officials, that form of government is known as an Autocratic government.  When those officials are guided by religious beliefs, it is called a Theocracy.  The United States is only partially a Democratic government today, we have a shadow version of governing that is Theocratic in nature.  We are becoming almost exactly like Iran in the way our government actually functions.

While we are supposed to have an 'independent judiciary' like Howard Kurtz wrote, it is not supposed to be an independent Legislature empowered to re-write laws the judge does not care for based upon his or her own religious beliefs.  Howard ought to be honest enough not to cheer-lead the kind of flawed judicial reasoning that created the constitutional decision in that case.  He is not going to like where this form of government is leading.  Let's look at the Schiavo case...

The Schiavo case is a clear example of a judge who decided that he could use his position as an appointed Judge, to thwart the rather clear and obvious will of the elected Legislature.  I am not certain that I agree with the law which was passed by Congress, but an elected body representing the citizens of this country passed a law, the intent of which was clear.  It was a single judge who abused his power to interpret that law in a deliberate effort to frustrate the intent of Congress.  That on its face is an abuse of judicial power.  Liberals should not be cheering this on...if this practice is adopted by conservatives, it is going places liberals are not going to like.

This is not hard to comprehend...unfortunately for Howard Kurtz and his liberal buddies, the next law which gets interpreted may be something he doesn't like.  You can bet that Howard and all his liberal buddies will start wringing their hands over the political nature of the decision.  The amnesia that sets in about how easy it was to approve of the Schiavo and the Juvenile death penalty cases will allow them to decry the same behavior they support today.

The truth is that this is all about a generation that has become 'the establishment'.  This new establishment is represented by the baby boomers and every generation that has come after them has been more conservative.  Every one.  Through the Roe effect, (liberals practicing abortion, 3 million liberals aborted) and the growing wealth of minorities; the country is becoming more conservative every year.  This aging liberal establishment, specifically in education and politics, has turned off the young people (establishments tend to do that) and are watching their influence wane.

Wiser pundits might be able to recognize the long term impact cheering on the politicization of the Judiciary is going to have.  Howard Kurtz is not showing himself to be a very wise pundit.  Sadly, he is not alone.

Comments

[Mark from WMD]

You do this old Social Studies teacher proud, Mahatma! let me at the youth, we will show them!!!!

Great work, as always!!!!

Thanks for bringing up hte scoolhouse rock "I'm just a Bill"....I have that character's bobblehead on my desk when I taught full-time and have it when I tutor folks in Government...

[Terri]

Good old school house rock!! I remember that one.
Too bad the gov. doesn't work as nicely as that song made it seem. Why do idiots have to complicate everything?

[Lynn S]

Judges have to interpret the law. If people don't like the way some laws are being interpreted they need to demand that Congress write better-worded laws.

[blogsy mcblog]

What a terrible example. How many states allow executions in the first place? Certianly not fifty. The constitution is a beautiful development in the rationality of man; it constrains the government to confrom its actions to a "law." When that law is vague ("[N]or cruel and unusal punishments inflicted"), the courts have to interpret it in a meaningful way. Otherwise, it isn't a constraint. The SCOTUS has been very deferrential to state and federal governments over the years (See the jurisprudence of the fourth amendment). The current Court looked at an "eveolving consensus," to determine whether execution of juveniles is considered "cruel." Well, most people in the world think that it is. More and more people in the states think it is. Of the 19 states that prohibit it, what is their population? Add that to the population of the states that don't have a death penalty whatsoever (Michigan, for example). What is the population of the states that have executions, but don't prohibit it? Does the decision seem a little more rational now? How would you suggest the Court define "cruel and unusual punishment?" Would you simply force courts to defer to governments? If so, then there is no purpose for the bill of rights; they no longer constrain. I cannot believe that "conservatives" are abandoning the principle of the independant judiciary constraining government. On a further note, read "Carolene Products, Footnote 4," to understand why minority groups often have no solace in majoritarian governments.

[blogsy mcblog]

Oh, what decision in the Terry Schiavo case has upset you? Was it the state court trial judge who followed the law completely, but whose finding of fact was contrary to your opinion? Was it the federal district court, that upheld decades of precedent by not finidng a cause of action in the case? Was it the federal appellate court (mostly Republican appointed) who read the law that was quickly and poorly written by Congress, and followed it to the T? What did you dislike?

[Dan Hamilton]

Liberals always slant the arguement as "You don't like what the Judge decided!". While this mabe be TRUE it is not the problem or what the Right is arguing about. It is NOT hte decision 'IT IS THE WAY IT WAS ARRIVED AT'. Was it based in the Constitution, the Law, past court decisions? Or was it based on the World Court, the judges opinion, what he heard on TV, or other nonsence?

These 'activist judges' are impossible to get rid of. Some are still getting their pay while they are in jail and when they get out they go back on the bench.

The Question is what can be done about them?

The only answer is NOT an acceptable one.

Either the judiciary stops legislating or a some point it hits the fan. Then heaven help us all. Why can't the left see this? Are they BLIND and Stupid?

If the Law says whatever the Last Judge decided it said. The Law means NOTHING. We are not there yet. But the Left is pushing us fast down that road. Today the Right just wants judges that decide cases using the plain words of the Constitution and Laws. What happens when the Right really want 'activist judges' of their own. God, I hope that NEVER happens but if the Left continues it WILL.

How do we wake the Left up?

[blogsy mcblog]

Dan Hamilton, you are a doing a wonderful public service. People like you are scaring the US public away from the Republicans right now. What if the "constitution" and "past court decisions" (if by "law" you mean statutory law, that takes a backseat to the Constitution when a litigant argues that a statute is unconstitutional) incorporate a brief reference to the practices taking place in other areas of the world? Should judges legislate from the bench and ignore that precedent? For all your vitriol about Europe, you and "Mahatma" would probably be happier in England; they don't have a constitution that constrains the legislature. You seem to hate the essentialy American feature of a legislature bound by laws.

[Mahatma]

blogsy:

You are confused about what judges do. As an attorney I can tell you that judges do consider precedent, but only precedent in the U.S. court system is considered 'binding'. Your ignorance of this tells me that you have no prior legal knowledge and are reacting purely from an ideological perspective.

Please think a bit about what you are supporting here. The issue with judges writing their opinion, or selectively picking precendents is that you can find support for whatever bias the judge wishes to inject into his or her decision. As I wrote, you may like it now but that is ONLY because of what this last decision said.

Also, I do not permit responses that belittle other peoples opinions on this web site or pick on my actual given name. Mahatma is not a pseudonym. You can vigorously offer your opinion, but to belittle others I do not permit.

Thanks.

[Dan Hamilton]

blogsy mcblog,
What are you talking about???

Nothing that I have said would give ANY support to a judge legislating from the bench. Weither from the Left, Right, or upside down.

And where do you get that I am against 'a legislature bound by laws' and the Constitution???

Did you pull these out of the thin air??

If a judges legal reasoning in a decision isn't legal reasoning at all but opinion then he should be removed.

First comes the plain words of the Constitution, Laws, and precedent. If the meaning is not clear you look at the intent of the people who wrote the Law. You don't stretch the meaning to fit what you want. It is simple and clear. If it isn't then the legislature didn't do its job and the law should be nullified because its meaning cannot be known. The judge should NOT redefine it the way he wants.

What people do in OTHER countries doesn't matter.

Judges have to obey the law too. They are not above it. Some seem to think they are.

Judges have the authority to nullify laws that are unconstitutional or laws whose meaning cannot clearly be determined. They do not have the authority to MAKE laws.

Today judges have the power to make law. This is very bad and will lead to anarchy. It must be stopped. The question is how?

The other question is why the Left doesn't see that this is bad? Short term thinking long term stupidity.

The best example of proper legal reasoning I know is Laurance Tribe. He looked at the 2ed amendment and said that it was a individual right. He didn't like it but there it was. Legal Reasoning does not and should not be colored by one's personal beliefs.

[Matt Hurley]

I'm particularly fond of the only Democrat on the Ohio Supreme Court. She thinks she's so far above the law that when she was arrested for a DUI recently, she actually had the nerve to ask the officers to let her go because of all that she has done (!) to help law enforcement. Fortunately, it's all on tape... Unfortunately, she'll probably keep her seat on the court... It will be a miracle if she even does any jail time.

[blogsy mcblog]

I did not mean to offend, Mahatma. Please accept an apology. However, you and Dan seem to completely misunderstand our legal system. While I could copy pages of secondary legal literature (mainly law review articles from prestigous L-Revs like Harvard, Michigan, and Stanford) eviscerating the theory of "original intent" (what if different framers intended different things? What if some of them added things into a law or constitution in order to destroy it? What if the context is completely foreign to modernity? What sources should judges use to do this, especially if the conventional sources don't settle the question?), but that would be counterproductive. Assuming original intent is the central theory of jurisprudence that our SCOTUS should utilize, what happens if the intent of the framers was to delegate an issue to the courts? What if they really wanted certain things to beheld outside of the realm of the whims of elected legislatures? Your inability to answer any of the central questions I posed above gives me a pretty good hunch about your partisan nature. Did you even read the post? Are you ready to admit that you were incorrect in your characterization of the status of the death penalty in this country?

I am a practicing attorney, and I was previously a Republican. Now, I can't imagine voting for a Republican; the party is radically anti-intellectual, and is trying to destroy the things that make us different from Europe. Mahatma, you can't envision a system where the "precedent" in a given area of law seeks is a standard that is interpreted by the SCOTUS? Have you even read the opinion in the case you are so vigorously critiqueing? Dan, you ignore one of the most fundamental canons of construction; statutes are read to resolve doubts by assuming that the legislature intended the statute to be constitutional. In addition, everything written by the legislature is assumed to be relevant; statutes are not read to possess null language. If courts invalidated every statute that seems to be vague, they would eliminate almost every piece of legislation written by conservatives in the last thiry years!! Read CERCLA; the intent of that statute is never in doubt; it was written by Democrats. Of course, CERCLA consists of thousands of pages of schedules, standards, and minute carve outs and "what if" clauses. It is a form of micromanagement that can be found in civil (Roman) law countries in most situations. Once again, Dan, I have to suggest that you sound like you would be much happier in central Europe than you are here. Oh, neither of you answered my question about the Schiavo case; which judge's decision do you disapprove of, and why?

[blogsy mcblog]

Sorry; instead of CERCLA, I meant the CAA. CERCLA is not quite as bad as the Clean Air Act.

[Carol]

I don't think one has to have a law degree to understand that activist judges are a serious problem, although I'm not sure that the Schiavo case is the best example to use.

To Blogsy:

If it becomes a growing trend around the world to legally execute people by stoning them to death, should the U.S. be bound by that "precedent"? If you say no, then you must believe that we can pick and choose which world "precendents" we like, and only allow those to affect American court decisions. But if that's the case, then doesn't it just come back to a matter of opinion? The question then becomes: whose opinion? Should it be the opinion of one judge or the opinion of the majority of Americans? I think it's obvious that when a U.S. law is subject to interpretation, it is the will of the American people, not trends in other countries, that should be the deciding factor.

[blogsy mcblog]

If a majority of democracies (the court only looked at comparable countries with legal systems somewhat similar to ours, not countries like Saudia Arabia) implemented stoning, and a majority of states did as well, it probably would no longer be considered "cruel and unsual" and thus would not be prohibited by the 8th amendment. We would not be "bound" to implement the practice of stoning, but we would not be prevented from doing so by the 8th amendment. I will constantly return to this point; if the will of the majority determines the meaning of the constitution, then there is no point to the constitution. It no longer acts as a constraint on the government. You are an anti-constitutionalist.

[Peter Konefal]

well said blogsy. The whole point of constitutions is to "freeze" the development and direction of the country and its laws along particular ideals and principles; in other words, to say, these principles and ideas are, notwithstanding extreme circumstances, a set of ideas, rules and guidelines that should not be changed, not by the will of the majority and not by the will of elected representatives.

Unfortunately, a lot of constitutions have little "ways out" that allow governments (and theoretically, people as well) to be able to rescind and violate the intentions of the original constitutional law.

In Canada, the conservative party believes that it can violate the equality clause of section 15 of the canadian charter of rights and freedoms (constitution) by denying civil marriage rights to same sex people; in other words, to discriminate who has the right to be married based on whether a couple is heterosexual or homosexual.

Leaving aside any moral debate over the issue, this whole notion of violating a precept of the canadian constitution has enraged a large number of canadian law professors (130) who have told the leader of the conservative party that to make such a law would be unconstitutional, and that he would have to use the "notwithstanding clause" in order to pass such legislation.

In other words, he would have to utilize the "way out" of drafting legislation that conforms to the canadian constitution.

I bring this up, because the notion of a constitution binding future behaviours is a contentious, even today.

The Schiavo case is a brilliant illustration of a continuing struggle between constitutionalists and those who essentially want the federal government to have dictatorial power when it suits their wishes.

Recall, that dictatorial power may be beneficial in the sense that if the dictator performs according to your expectations, no court can stop him/her (has there ever been a female dictator?), but the converse of the situation is that nothing can stop the dictator from conducting policy in a way one wouldn't like.

The US has a brilliant constitution, in fact, in many ways better than the Canadian constitution. The founding fathers were very, very, very, progressive -radical by the standards of the day (they wanted their nation to exceed the vices of aristocratic Europe, clearly) and the document is a testament to that. Its not worth scrapping just because one feels that the courts have exceeded their power (i.e. weren't sufficiently pro-life).

In my view, I'd rather have an over-powerful judiciary than an over-powerful federal government (although, obviously, balance is preferable in both cases).

[Peter Konefal]

I also agree that the republican party is itself fiercely anti-intellectual. Watching the election campaign from way up north in Vancouver (basically 2 miles from seattle) I was struck by how George Bush's use of language reduces chances for rational debate and the discussion of issues in an non-sensationalized manner.

A graduate student at my university has conducted a fascinating study of George Bush's language, and its consequences for debate, democracy and conflicts between cultural-religious values. Fascinating work, but disturbing conclusions.

http://www.sfu.ca/mediapr/sfu_news/archives/sfunews04070509.html

But you don't need to check that link if you haven't thought along these lines before. This blog is a highly partisan affair. Split brutally between those who agree or are willing to consider divergent ideas and those who will generally disagree with anything critical of Mr. Bush, republicanism, capitalism, overriding the constitutional framework of US society...etc.

I think the best attitude sometimes is a willingness to debate, even thought it might seem pointless, along with a well-built wall of mental distanciation; so that attack-posts will fail to beguile one into an emotionally charged response.

Angry posts almost never come across right as we all know...

[Carol]

Blogsy,

You seem to have a circular argument. On the one hand you tell me that, “If a majority of democracies … implemented stoning, and a majority of states did as well, it probably would no longer be considered "cruel and unusual" and thus would not be prohibited by the 8th amendment,” implying that the will of the majority should be a factor in determining the constitutionality of a law. Then you say, “…if the will of the majority determines the meaning of the constitution, then there is no point to the constitution.”

My point was this: why should the customs, practices or laws of other countries be considered when determining what is constitutional in the U.S.? I notice that before you answered my question on stoning, you changed it. My exact question was, “If it becomes a growing trend around the world to legally execute people by stoning them to death, should the U.S. be bound by that "precedent"?” I said nothing about any adoption of this practice here in the U.S. So I am still curious to hear your answer to my original question.

[Mahatma]

Dear Readers:

Please do not mischaracterize my opinion regarding either the Schiavo legislation or the execution of juveniles. It is not the outcome which I am writing about, it is the method.

I wrote regarding the Schiavo legislation:

"I am not certain that I agree with the law which was passed by Congress..."

and regarding the Execution of Juveniles:

"Now I do not support the execution of juveniles, but I am profoundly disturbed by this decision."

To try and reargue the facts of the cases based upon the outcome is merely partisan nonsense. I am deeper than that. Think about what I am writing here and ponder the future.

I am not at all certain the Schiavo case should have required Federal Legislation, but the purpose for that legislation was clear. As a judge, I can not substitute my beliefs for those of the legislature. I think in that case the judge deliberately misinterpretted the intent of the Schiavo legislation. Based upon a plain reading of the facts, it would be very hard to argue otherwise. This is wrong. A judge should NEVER have the authority to thwart the will on a Legislative body.

You need to understand that this fundamental rule is the only thing standing between a Theocracy and a Democracy. I think your view of this issue is very short-sighted. If you do not understand that, we have nothing to argue about. If you think any judge, not responsive to the voters in any meaningful way, should be empowered to insert personal opinion in a manner designed to thwart Legislative intent; I'm done here. We just will have to disagree about what a Democracy actually means.

I will leave you this thought to ponder: If a bunch of 'right wing wackos' decide that if this is how the system works they will exploit it; many of your cherished principled programs and will be eliminated and there will be nothing any legislature will ever be able to do to prevent it. Based upon what I have recently seen...that day is coming very soon. Liberal judges and activists have overplayed their hand and I fear we will see a strong conservative activist judge reaction to this. If you do not like Republican philosophy, be very worried, liberalism does not have either the numbers or long term demographics to win this battle. I'm worried about THIS issue, and if you are a deep thinker you should be too.

[blogsy mcblog]

Carol, you misunderstand the 8th Amendment. Things that are not prohibited by the 8th amendment are not immediately required to be implemented. Even if every democracy with a legal system implemented stoning, we would not be "bound" to implement it. However, the federal and state governments would probably not be prevented from implementing stoning by the 8th amendment in that situation.

I posted many moons ago on this blog that 8th amendment jurisprudence was deferential, and that it was crazy for wingnuts to complaint about this decision as an example of "left wing judicial activism." In other words, it isn't exactly circular, but the SCOTUS is practicing a form of indirect majoritarianism by looking at the practices in different states and countries when determining an "evolving consensus." The Court allows the majority of societies to define the "evolving standards of decency that mark the progress of a maturing society." However, it is the Court that determines that framework; obviously, it doesn't just allow the federal government and every state government to define FOR ITSELF what the 8th amendment means. If it did, there would be no eigth amendment. Personally, I think that even this approach is too deferrential to the whims of majorities. However, it is the established framework of our constitutional jurisprudence, so if I were a Supreme Court Justice, I would follow that framework instead of radically departing from it in order to avoid placing constraints on governments.

Oh, Mahatma; "By a similar calculation in this case, 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach." Thus, 30 out of fifty states prohibit the execution of juveniles. In addition, in the past ten years, only three states have done so. Oh, and for those of you who want to see the company that we keep by desiring to execute juvenilles, only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China.

[blogsy mcblog]

Mahatma, the Schiavo jurisprudence followed the law TO THE LETTER!

"In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings."

"After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life."

"Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States."

When asked whether this meant that the Federal District Court had to grant a new trial, Bill Frist said "that is not my understanding." The Court reviewed whether the claims of violations of Terri Schiavo's rights were legitimate, and found that they were baseless under the "laws of the United States." Courts can't devine what legislators want; many legislators want different things from the same legislation. Thus, the Court followed the letter of the law, and found that none of Terri Schiavo's rights had been violated. End of story. What "process" would you like the courts to utilize; the new "it wasn't written, but we think Congress meant X" test? That seems much more apt for abuse than simply following the letter of the law.

[Dan Hamilton]

Mahatma said it correctly. What is important is the WAY a decision is reached NOT THE DECISION.

And he is right about what should be feared by the Left. (and the Right) That is that the Right will decide to get their own 'activist judges'. When that happens it is only a matter of time before it hits the fan.

The Left keeps yelling that the Right is doing that NOW. The Right isn't. But how long will that last. If the Left, the MSM, and everybody else on the left side keeps yelling that, the right will at some point just say WTF and do it. It will not cost them anything. Nothing else will work to fix things the Right will think. Then where will the Left be?

Yes, Yes , and Yes again there are highly technical laws that require decisions that have left certain decisions about how the law is to be read to the judges. Trade offs and other things. CAA and other such stuff.

THAT IS NOT WHAT WE ARE TALKING ABOUT!!

We are talking about -

Judges impossing TAXES on people to pay for school changes that the JUDGE believes should be made. (St. Louis)

Judges deciding to change the BASIC culture because they believe they should. (Gay Marriage)

Judges saying a few years ago 'Yes you can execute 17 year olds' and now saying 'No, you can't' when NOTHING has changed except the thinking of a couple of judges.

Judges saying that the First Amendment doesn't matter, we are approving McCain-Findgold(sic) anyway.

Wake up!!! If they can toss aside, ignore, the First anytime they want to 'WHAT IS PROTECTED'. How can you be sure of ANYTHING.

That is what I want to STOP. I am not talking about what COULD happen. I am talking about what HAS happened. The camel has his nose in the tent. He has already started to stink the place up. I am looking for an answer short of and far far better than SHOOTING the Camel. You are telling me that everything is alright, that the Camel is supposed to do that. And the Left is yelling that the Right is trying to bring it's own camel into the tent.

Recognize the PROBLEM! Help and FIX it! Before the tent comes down and/or the shooting starts. Nobody wants that, NOBODY.

[Carol]

Peter,

I have never understood the claim that equal protection rights under the constitution are a basis for validation of gay marriage. Traditionally any person of legal age has the right to marry any person of the opposite sex who also is of legal age. In this respect we are all treated equally. The problem with gays is not that they don’t HAVE that same right as everyone else, it’s that they don’t WANT that same right - they want something different. So it is not an equal rights issue. The way to change it would be to pass laws allowing for same-sex marriage. However, proponents of same-sex marriage understand that this would be unlikely to happen given that the public is overwhelming against it. So they are trying to circumvent this process, with the help of activist judges, by mangling the constitution around what they want to do. This is an abuse of the constitution.

[Mahatma]

If the stakes were not so high the defense of the Schiavo jurisprudence would be amusing. The judge did what every judge does who is seeking a solution that agrees with the outcome he/she desires. The judge searched for data to justify his desired outcome.

Interpreting legislative intent is fraught with uncertainty. While that is true, however, the interpretation of legislation should never be handled in a way which clearly frustrates the very intent of the legislators. There was never a question as to what outcome the legislators wanted with the Schiavo law. To arrive at a totally different conclusion based upon one legislative solliloquy is indefensible.

As I said in my earlier post, when the shoe is on the other foot some very bad things are going to happen. No legislation or election or voting will be able to reverse the long term affects. The U.S. is turning into a Theocracy and liberals will have no one to blame for this but themselves.

Maybe I'll move to Canada...just kidding Peter.

[Carol]

Blogsy,

It’s not clear to me whether you are deliberately missing my point or if I am just not making the question clear. In your original comment you said the following:

“The current Court looked at an "eveolving consensus," to determine whether execution of juveniles is considered "cruel." Well, most people in the world think that it is.”

Once again, if most people in the world think that stoning is an acceptable means of execution, does this then mean that we should follow suit? From your standpoint I guess the answer must be “yes,” because you used ‘world think’ as justification for Justice Kennedy’s decision on juvenile execution here in the U.S. Oh yes, I know you added the caveat that there is evidence of a similar trend here in the U.S., but what if there hadn’t been? What then? I guess that would have put Justice Kennedy in the position of deciding which carried more weight: world opinion or American opinion. The whole notion that a single judge or panel of judges should be able to make binding decisions on U.S. law giving more weight to world opinion than to the will of the American people should scare the pants off everybody. And if your answer is that given a choice, the will of the American people should always prevail over world opinion when determining the constitutionality of U.S. law, then what is the point of judges considering world trends at all? It is the job of the American people to look at trends and practices around the world and decide if we want to follow suit. It is NOT the job of any judge to make that decision for us.

I will agree with Peter K. on this point: “The U.S. has a brilliant constitution.” That being said, we must trust it and we must protect it from those who would abuse it.

[blogsy mcblog]

Carol, you and Mahatma just don't get it.

"There was never a question as to what outcome the legislators wanted with the Schiavo law."

Really? Prove it. Are you saying that if you were a judge, you would ignore the express langauge of the statute that you were intepreting in favor of some vague notion of what you though legislators wanted? In case you didn't read my previous post, the statute explicitly stated that Terry Schiavo did not receive any new substantive rights from the statute. It merely granted the federal court the ability to determine whether her rights had been violated UNDER CURRENT US LAW. Every jurist who looked at this decision agreed that her rights were not violated. What approach do you and Carol want courts to take? Do you want them to blatantly ignore the express langauge of the statute? Is the "method" you are complaining of merely looking at the words of the statutes Congress passes? What evidence do you have that the Federal District Court and the 11th Circuit appellate court merely "searched for evidence to justify their desired result?" What are you basing that assertion on?

Carol, your defense of bigotry applies equally to prohibitions on interractial marriage. People living in a state that banned interracial marriage would have the same rights; to marry within their own race. Should the Court have decided Loving v. Virginia in favor of Virginia? Please read my above post to see my response to your argument about stoning. I really don't think you are reading what I write.