Political Statements
- This topic has 1,317 replies, 68 voices, and was last updated 14 years, 1 month ago by
.
-
Posts
-
I have no dog in this fight — in fact, I should probably stay out of it because I’d (personally, not from the perspective of a forum-admin) rather see this discussion die. I ought to resist the temptation, but…
The argument is as follows: “There is nothing in the constitution regarding abortion, therefore Roe v. Wade was a bad decision.”
That’s certainly one argument — yet another is that there is nothing in the Constitution that gives the federal government the right to regulate abortion, so the decision should be left to the states. Those who criticize “judicial activism”, though, would be more likely to make the argument that there is nothing in the Constitution that gives the judiciary the right to make this decision.
There was nothing in the constitution that gave women the right to vote, minorities to right to ride in the front of the bus, drink out of the same drinking fountain as whites, stay in the same hotels, etc. etc. etc.
Rhetorically effective, but a little fallacious — that good things have happened because of overstepping the bounds of the originally written Constitution does not mean that such overstepping is good or permissible. The old ends-not-justifying-means thing.
[Not to mention that giving women the right to vote is (a) not the result of judicial action, active or otherwise, (b) now in the Constitution, through the procedure that the Constitution itself outlines as the way to alter the Constitution. In fact, the rights given to minorities were also, at the time of decisions such as Heart of Atlanta Motel (1964), in the Constitution, at least inferentially, via the 14th Amendment‘s guarantee of “equal protection of the laws” to all citizens regardless of race. But there certainly are plenty of other examples you could choose instead.]
(ETA: To clarify: Originalists, of which I am not one, don’t generally have a problem, per se, with amending the Constitution — they tend to accept that as the way changes to the Constitution are supposed to happen. It’s “circumventing” the Constitution through other means, such as judicial decisions, that they’d object to.)
Did the constitution have anything to say regarding police interrogation? No. Yet here we are today, assured of the right to counsel and remaining silent when arrested because in 1966, the Supreme Court decided that this was necessary (Miranda)
To be clear, these rights didn’t originate with Miranda. The big change as a result of Miranda was that suspects had to be informed of their rights. And the Fifth Amendment does deal with matters of police interrogation.
What’s more, both of them [Obama and Biden] have very high level experience in Congress, one of the three branches of government, specifically addressed in the U.S. Constitution.
I think Sens. Obama and Biden both have the requisite background and experience to merit the appellation of “constitutional scholar”, but I don’t think that serving in Congress gives anyone a better understanding of the Constitution, just of politics, which is valuable as well but not the same. I know exactly the figures (multiple) I want to name here, but I’ll start a firestorm, so I’ll just say that I can think of many people who have served in high positions in the branches of government that are not by any stretch experts on the Constitution, and I’m sure you can think of some yourself if you try.
And as for your list of Republican talking points / buzzwords, do you mean that I couldn’t, given half an hour, compile an equally lengthy list of meaningless Democratic phrases? I’d really like for you to yield on that point, because I really don’t want to have to waste my time when I care so little.
(ETA: Of course, despite my stated lack of interest in wasting my time, mtgordon still beats me to the punch by forty minutes, including citing one of the several non-“constitutional experts” I had in mind.)
Obama taught at The University of Chicago School of Law from 1992 to 2004. He was a Senior Lecturer from 1996 – 2004 (that’s an “11” in the world of law professors) JoAnn, you seem really interested in this and I will try to find some of Obama’s legal writings if I have time this week. BTW, what do you mean “his records have been sealed?” In the mean time, would you be interested in reading either of his books to learn more about him?
MT: ha ha: Ted Stevens. Yeah and Cheney and Rumsfeld’s “experience” brought us years of peace and prosperity too, huh?
there is nothing in the Constitution that gives the federal government the right to regulate [something], so the decision should be left to the states.
If the question can be defined in terms of life, liberty, or property, then the 14th amendment gives the federal government that right, or at least demands due process on the part of the states. The biggest ambiguity is whether “liberty” should be defined narrowly (in prison, in bondage) or broadly.
ETA:
that good things have happened because of overstepping the bounds of the originally written Constitution does not mean that such overstepping is good or permissible.
I’ll use the Massachusetts gay marriage example again. If the courts decide something, and the legislature backs them up, then in hindsight, I’d say the courts did nothing wrong. If the courts decide something (striking down a law as unconstitutionally vague, for example), and the legislature fixes the problem in line with the courts feedback, then the court did nothing wrong. If, on the other hand, the courts decide something, and the legislature changes the law (by constitutional amendment, if necessary) to get around what the court decided, then the court erred. Again, though, this is the clarity of hindsight.
When the law as written is internally inconsistent, the courts have a responsibility to reconcile that inconsistency. Much of the problem lies in disagreements over what qualifies as an inconsistency; the rest lies in the manner in which the apparent inconsistency is to be reconciled.
Hey Kids! This’ll be fun fun fun! Politics AND Religion – wrapped up all in one discussion.
Just checking to see if you were paying attention, Bry:
ohgod.
— the admin
I yield to all sorts of stuff, Bry, and you and MT rightfully point out that several examples I used were brought about by other than judiciary means. My apologies. I guess the point I was trying to make was this: When looking at both sides of the “living constitution” issue, I like to ponder how our changing society plays into changes in laws, regardless of how they are made.
Thank you for jumping in here and helping out.
I see no point in any of us attacking one another for our political beliefs, or in downgrading anyone else’s intelligence, morality, patriotism, or any other personal attributes because we disagree with them, but I really feel that discussions/debates like this one are positive, valuable things.
I think we do too much grandstanding in the United States, jumping onto various opinion trains way too fast and with too little information.
Some of the issues that have helped to turn the USA into a highly polarized society are ones where we seldom listen to the viewpoints or reasoning of the people we don’t already agree with. We just hang out with the people who are like us, and our ideas don’t get challenged. Then, once every two, four, or six years, people manipulate us into making choices that affect our lives a great deal by pressing the available opinion buttons that are just sitting their in our subconscious brains, waiting to get pressed.
Other than the fact that it doesn’t have anything directly to do with the music or twittering of Jonathan Coulton, what’s the downside?
Jinx, from the perspective of what’s good for the forum, there’s no downside, except to the extent that the forum is weakened by its admin getting headaches. The discussion here has been, as you say, basically open and free of personal attack; however, there’s nothing that’s been said so far that I both have never heard before and care about in the slightest. I’ve heard too many such discussions to believe there’s much likelihood of firmly-held beliefs being actually altered. So my wanting the discussion to end is entirely selfish and personal, I want to make clear.
I really LIKE the fact that there have been no personal attacks during the discussion. I know that I feel very strongly about certain aspects of politics and religion, and the greatest temptation which I face is always one of getting so single minded that I let anger and hatred start to control my thought processes. Being able to have a logical discussion, even if the end result is “I guess we will have to agree to disagree then” is like a breath of fresh air to me. Anger and hatred are exhilarating, which is where thier dangers really lie, and being able to discuss things without that temptation (and without being screamed at in some form) is refreshing. I know that when I give in to hatred, (give in to the dark side, Luke!) that the enemy is winning, and that I am losing some of my principles.
Then I think we should continue this discussion, wherever it meanders to, and also everyone should start a discussion that would be unlikely to give Bry headaches. Just developing hypotheses as to what that would mean could keep us cogitating for HOURS.
I’ve always thought the term “activist judge” was a little lame. An “activist judge” as near as I can tell, is what you call a judge who interprets the law in a way you don’t like. If you like a law and they strike it down, then they’re “activist”. Or if they read the Constitution and see a right implied in there that you don’t think is there, then they’re “activist”.
JoAnn — when the Supreme Court recently decided that the 2nd Amendment protected a personal right to own a firearm (as opposed to only state militias having that right), which went against the body of settled opinion (most specifically, United States v. Miller) that said that that right wasn’t in there, were they being activist? I don’t remember Rush Limbaugh getting too upset about that one, although it was clearly a case of the judges striking down a law in Washington D.C. that the people had enacted (hence, “activist”).
(this Slate.com article does a great job of explaining the issue)
Hey, kids! Let’s discuss constitutional law!
1) Around 1917, it was understood that outlawing possession and sale of alcohol on the federal level would require a constitutional amendment. However, outlawing various other substances wasn’t seen as requiring a constitutional amendment. For the record, most drug laws started off as tax provisions with an interstate commerce context and gradually grew in scope over time, and conflicts between state and federal laws are relatively recent. What limits, if any, are there to the federal government’s authority to regulate the possession, use, and sale of substances?
2) The copyright clause of the constitution grants an effective monopoly “for limited Times” on certain forms of speech in order “[t]o promote the Progress of Science and useful Arts”. The first amendment establishes free speech and free press. How are these seemingly contradictory concepts to be reconciled? How can such a reconciliation be made to allow the extension of copyright for works that have already been created?
3) Under Article 2, Clause 5, only natural-born citizens of the United States are eligible to serve as President. John McCain was born in the Panama Canal Zone at a time when the citizenship status of children born there to US citizens was legally ambiguous. Is he eligible to serve as President?
4) Under the twelfth amendment, the President and Vice-President may not be inhabitants of the same state. In 2000, both George W. Bush (then Governor of Texas) and Richard Cheney (then CEO of Halliburton and living in Dallas) were arguably inhabitants of Texas. Cheney signed some papers to declare that he was an inhabitant of Wyoming. How legitimate was this move?
5) Conservatives demand that nominees for the federal judiciary not be “activist judges,” and liberals demand that those same nominees “respect precedent.” Does a knee-jerk embrace of precedent as sacrosanct condemn <a href="http://en.wikipedia.org/wiki/Brown_v._Board_of_Education"Brown while defending Roe? Or is it necessary to argue that Brown was a mistake that must, in hindsight, be preserved due to the sanctity of precedent?
I’ll keep my opinions to myself for now, though my high opinion of Lessig probably makes my feelings on 2) clear.
I am not a lawyer, of course, much less a constitutional lawyer, but I find constitutional issues interesting, at least until they get turned into political issues.
5) deals with the issues at the heart of the discussion of stare decisis in the plurality opinion in Planned Parenthood v. Casey (1992) (a controversial decision, and not only because it dealt with abortion). To summarize the Wikipedia summary, according to the plurality, in order for the Supreme Court to overrule one of its own precedents, there must be some change in our understanding of the central holding, whether in its facts or in societal views.
(Note that I am restating other people’s opinions and not giving my own. I am not altogether in agreement with the Casey decision.)
Apropos of very little, from the Onion: Supreme Court Overturns Car (some extreme language).
Also, forgot to mention, from the previous page:
If the courts decide something, and the legislature backs them up, then in hindsight, I’d say the courts did nothing wrong. If the courts decide something (striking down a law as unconstitutionally vague, for example), and the legislature fixes the problem in line with the courts feedback, then the court did nothing wrong. If, on the other hand, the courts decide something, and the legislature changes the law (by constitutional amendment, if necessary) to get around what the court decided, then the court erred. Again, though, this is the clarity of hindsight.
So something like the judicial version of Jackson’s three-prong test in Youngstown (1952) (the Steel Seizure case)?
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum…
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain…
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb…(That is: The extent of the President’s constitutional authority depends in part on whether or not he or she is acting with Congress’s approval.)
There’s a definite similarity of principle, and I may have had Jackson whispering in my ear when I wrote that. However, my hindsight definition of excessive judicial activism honestly isn’t as interesting or as useful as Jackson’s three-prong test. Jackson could look at the current state of law to apply his test; I have to look at the future political consequences to apply mine.
Regarding changes in our understanding, what do people think changed between Plessy and Brown? I have my own theory, but others may disagree strongly. I’m curious whether others have independently reached the same conclusion I have.
I’ve always felt that socially, there was a change in public attitudes that supported the average (non-Southern) American’s sense that civil rights for black Americans boiled down to an issue of fairness. It seems to me it was a gradual process that started in the Progressive era of the 1910s and 1920s, stalled during the hard times of the Depression, and then accelerated with the widespread shock and horror about what the Nazis perpetrated against the Jews during the Holocaust.
If you look back to the 1920s, there were all kinds of bizarro racist pseudoscientific theories used to support immigration quotas, forced sterilization of various eugenically questionable folks, and of course to buttress the Jim Crow laws in the American South. And the average citizen by and large accepted that stuff as just how things worked. But World War II moved so many American citizens to so many new places that it shook up a lot of world views. By the end of World War II, I don’t think it was seen as quite so cool & American to be as racist as it had in the past.
And a whole generation of educated American Jews emerged from that same shock and horror ready to stand up and speak out on behalf of the rights of any group that was being discriminated against. Add that to the community organizing strategy & tactical experiences of labor unionists, socialists, and similar groups, and you had a matrix better able to support the NAACP and other groups in their efforts.
That’s how I’ve always seen it, at any rate. Well, that and Bayard Rustin, of course.
Yeah, that’s pretty much in line with my gut feeling: the Holocaust, in which white people were the targets of racism by other white people, made racism far less socially acceptable to white people in the United States than it had been previously, since white people who had previously been apathetic suddenly became able to identify with the victims of racism. Things started to move after 1945: Jackie Robinson signed with the Dodgers in 1947, the Democratic party embraced civil rights in 1948 (splitting itself as a consequence), and Truman began desegregating the military that same year. Even Broadway show tunes started condemning racism in 1949. It took a few years before there were major shifts in the courts, and the civil rights movement is largely seen as a phenomenon of the 50s and 60s, but in my opinion the fundamental societal shift took place in 1945.
There’s a politically incorrect aspect of this reading of history, though: it attributes civil rights progress to decisions that white people made based on the experiences of other white people. It may be the truth, but it’s not really a popular narrative. The popular narrative gives most of the credit to the NAACP, Rosa Parks, Martin Luther King Jr., etc. and shifts the timeline a few years later accordingly.
- The topic ‘Political Statements’ is closed to new replies.