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Sandra Day O'Connor Stepping Down.

Discussion in 'The OT' started by Richard King, Jul 1, 2005.

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  1. Jul 4, 2005 #61 of 111
    RLMesq

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    In the first chapter of The Tempting of America: The Political Seduction of the Law, devoted to Marbury vs. Madison, Robert Bork opined that Marbury’s case should have been "dismissed out of hand" by the Supreme Court for lack of jurisdiction.

    Robert Bork criticized the opinion as judicial activism based on a "loose construction" of the Constitution (like finding "the right to be left alone" in the penumbra of the Bill of Rights, perhaps), but says he would not have voted to overturn it because it produced a good result.

    How can a self-proclaimed originalist support result-oriented judicial activism?
     
  2. Jul 4, 2005 #62 of 111
    Geronimo

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    This is odd. The Democratic senators I see on TV are all saying they are awaiting wehop the president will pick and are praising his apparent commitment to choose with the advise and consent of the Senate.
     
  3. Jul 4, 2005 #63 of 111
    pjmrt

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    I guess you missed Senator Kennedy's speech. I hope you're right, that they go into this with the objective of giving a fair evaluation of the nominee. It would surprise me no end, but I would love to be proved wrong on this one. I expect Dean, Kennedy, ... etc. will lead the charge of "indignation", threaten filibuster again, and otherwise try to derail anyone Bush picks who is not a liberal out of their mold (their "litimus test").
     
  4. Jul 4, 2005 #64 of 111
    jonstad

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    Right! That's what we need. More empty, oxymoronic cliches!:hair:

    Which specific legislation has come "from the bench"? What wacked out radio talk show host stuck that little gem in your ear? Or was it Fox News?

    Where are the "laws" the Court has created? When have they changed so much as a single word of any legislation?:shrug:

    I hope we can agree that at some point laws, and executive orders, must be measured against the Constitution. Otherwise, the obvious question is- Why HAVE a Constitution? Whom do you believe should make these determinations? Congress? The Executive? Congress would of course decide ANY legislation they pass is Constitutional. The Executive would simply decide laws that served their purposes would be Constitutional and any that didn't, NOT! The results would be either a dictatorship of the legislature or the Executive, both rendering the Constitution meaningless.

    So educate me. I'm willing to learn. Who decides what is and is not "Consitutional"? Or does it really matter?
     
  5. Jul 4, 2005 #65 of 111
    jonstad

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    You all know how I hate to be the voice of reason here.:grin: But don't ya suppose we ought to wait to see who Bush nominates first, and then the reaction of the Democrats second?

    I don't believe the Democrats are holding out for Noam Chomsky(my choice;)), but merely not someone so far to the right they've fallen off the eastern seaboard. O'Conner mostly sided with the conservative majority. But to the consternation of conservatives didn't ALWAYS knee-jerk with Rehnquist, Scalia and Thomas. I don't think Democrats would have a problem with someone similarly inclined.

    The problem is, the press, in their never ending quest for sensationalism has already put both sides in a box. In fact, they've been building up to this for a long time, salivating over the prospect of the first opening on the Supreme Court. With sh!t eatin' grins and rubbing their hands together with glee, they've already labeled this as "The Battle for the Supreme Court" and other such nonsense. If Bush nominates only a moderately conservative justice, he will be seen as caving to the Democrats. If he nominates someone accptable to the Democrats and they don't put up a big stink, they will be seen as weak and ineffectual.

    A paradigm has been set up where the throretically ideal outcome, Bush nominating someone who is relatively acceptable to Democrats, is a loss for Bush AND the Democrats. Bush is almost forced(not that he might not be so inclined anyway) to put forward the most rabidly idealogical conservative he can find. And the Democrats, no matter who is nominated, are almost forced to vehemently oppose them. It's a no-win situation for Bush and the Democrats, and certainly for the country as a whole.
     
  6. Jul 4, 2005 #66 of 111
    pjmrt

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    Well, most recently - there is the juvenile death penalty case - it created new law that juveniles cannot be sentenced to death, even if the majority of the residents of that state believe it not to be cruel and unusual punishment, even if properly sentenced by jury of his/her peers, even if justified. The ruling drew little from the constitution and brought in a lot of philosophical arguments in the decision. Ruling an act of law, enacted by LEGALLY and CONSTITUTIONALLY elected representatives, is unconstitutional and hence null and void (in effect, veto power not constitutionally afforded to anyone other than the executive branch) should be done sparingly and with great care. [Sorry Nick, yes its a run-on sentence.] To act otherwise (the history of the US Supreme Court in the 20th and now 21st century) invites a new tyranny, a tyranny of the courts. That is what must be reversed, or the days of free, representative government is limited.

    And there are plenty of other examples. The constitution says some things quite plainly. What the modern court has done, is turn the Constitution into a "relative" document. In that way, one can read new meaning into clauses which had a pretty clear and specific meaning. By destroying any "standard" in the Constitution, one is then free to effectively legislate from the bench, over-ride the will of the people to impose one's own philosophical leanings, and remain totally unaccountable to the people.
     
  7. Jul 4, 2005 #67 of 111
    pjmrt

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    For once, I agree with you. The press is fanning the flames and pushing ideological extremes to the surface to foment the battle.
     
  8. Jul 5, 2005 #68 of 111
    Bogy

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    Congress has handed the power to wage war to the president. This is decidedly unconstitutional, yet you don't see this as a problem for the balance of power, and the overwhelming strength of the presidency.
     
  9. Jul 5, 2005 #69 of 111
    Bogy

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    You are just stuck on the fact that the Supreme Court said that it is wrong to be putting children to death. I don't care if everyone in your state think its the thing to do, that does not make it right. It does make you ignorant of biology and vindictive. Thank God for a Supreme Court who had the guts to stand up and make the right decision. Just because the founding fathers didn't put an age in the constitution under which it was cruel and unusual to execute children, doesn't mean it wasn't the right decision. The writers were living in an agronimous society, with limited communications. There is just a slight possibility that they left out a few things that make sense today. Such as a more complete decision as to what is cruel and unusual.
     
  10. Jul 5, 2005 #70 of 111
    jonstad

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    Well what can I say, ya got me cold. Because of the tyrannical Supreme Court, the only bastions of freedom left where the right to execute juveniles is still allowed are Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo and China. 'Twas a sad day indeed when we left the ranks of this noble brotherhood.:nono:

    Seriously? This is your best argument? We need reform because the courts won't let us execute children!?! I can't even believe I'm debating this!:hair:

    But OK, here goes.:shrug:

    To a degree, you're correct. There IS no Constitutional prohibition on executions of juveniles. In fact, I don't believe there is much in the Constitution about sentencing for crimes at all. All that is pretty much left up to "judicial power". So along with the concept of "cruel and unusual punishment", I guess it could be said they kind of back-doored this one. Fair enough, jurisdiction was questionable.

    But, although the purvue of the Supreme Court, especially since Marbury/Madison, has been largely to interpret laws strictly in the context of the Constitution, the Constitution itself does not draw such a distinct limit on their "judicial power". So on occasion, the Supreme Court may deign to rule on other matters. You may recall a case in 2000 that acheived some notoriety, Bush v. Gore, where the jurisdictional and Constitutional authority of the Court was highly disputed.:D

    In the case of juvenile executions, it can be argued this authority was equally dubious. However, my feeling here is the majority justices may have looked outside the Constitution, at least partially, to concepts known as basic human DECENCY and civilized behaviour. If I recall correctly, they are concepts generally known and accepted by those people who call themselves Christians. Are you familiar with this group???

    Oh, that's right! YOU call yourself a Christian. So you must be knowledgeable about these concepts. Or do you just choose to recall only those passages that go something like "suffer the little children"?
     
  11. Jul 5, 2005 #71 of 111
    Danny R

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    However, my feeling here is the majority justices may have looked outside the Constitution, at least partially, to concepts known as basic human DECENCY and civilized behavior. If I recall correctly, they are concepts generally known and accepted by those people who call themselves Christians. Are you familiar with this group???

    And lest we forget, this isn't a concept that has no precedent. The US has in the past said that there ARE bigger laws than just our Constitution. We tried Nazi's and others with "crimes against humanity". Some rules, even if not specifically written down on some document, are beyond the pale and our government's position is that we can enforce those.

    Executing children, while all the rage in some states and in the past (when children were forced to be adults sooner), is something more civilized societies frown upon.
     
  12. Jul 5, 2005 #72 of 111
    djlong

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    You know, I *really* hate to say it, but I have read reports, usually from the worse areas of Boston but one in Rhode Island comes to mind where the murders commited by the juveniles were so heinous and beyond the pale that, yes, I would agree that the perpetrator no longer has his "right to life".

    Those cases are VERY few and far between.

    When you have a 'juvy' smirking over how he gets away with murder and is set to terrorize the victim's family when he gets out after serving a scant 3-4 years before his 'change of status' sets him free... You just get the impression that there are certain aspects of the system that are broken.

    Kids who kill people because they believe they will get away with it are sociopaths and I haven't exactly seen too many cases of really being able to 'reform' types like that.
     
  13. Jul 5, 2005 #73 of 111
    Danny R

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    I don't think anyone is saying we should let unrepentant child killers out just because they turn 18/21 (or whatever age).

    I'm a staunch death penalty advocate, but killing kids/the mentally retarded/etc isn't something we have to do.
     
  14. Jul 5, 2005 #74 of 111
    Geronimo

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    I think that this isa fair statement. I did read two alleged apeeched form Sen. Kennedy. Onr making the round of blos that is clearly a joke and one that while not exactly upbeat about the whole thing points out that he reserves the right to filibuster etc.

    sa for jusvenile executions I don't think that it is that clear cut an example. The constitution does forbid "Cruel and Unusual punishment". I see alot of room for interpretation as to what that is. I also happen to disagree with the court on that but to say that they can't rule on the constitutionality of a law because it was enacted by legally and cosnstitutionally elected legislators does not ring true to me.
     
  15. Jul 5, 2005 #75 of 111
    djlong

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    Actually, DannyR, that's exactly what Rhode Island was prepared to do. Let a monster out scot-free because of the way the laws were written down there.

    I wish I remembered the kid's name.. There were two good things that came out of it though. First, it got the state to examine it's laws concerning the release of underage offenders and, second, they kept the kid in jail for other offenses. A punk like that was bound to screw up again and apparently did some stuff in jail that got his term lengthened.
     
  16. Jul 5, 2005 #76 of 111
    pjmrt

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    True, but my point is that there should be clear constitutional ground before over-ruling the will of the people. "Cruel and Unusual Punishment", what does that entail. The justices who ruled the law violated that part of the constitution looked outside US legal precident, outside the US Constitution, to justify their decision. It should be a reasonably fair violation of the constitution before one imposes one's philosophical opinion on the majority of the people. Its equivalent to saying "we're more enlightened than you, so your law is vetoed". I do not dispute that people have widely varying opinions on the death penalty - as on the death penalty applied to people under a specified age. But the place to settle that is in the court of public opinion, public discussion of the law, and public enactment of the law and/or changes to the law. This country was founded to free the people from oppression from a group who considered themselves more enlightened than the rest of us, and therefore felt that gave them the right to tell everyone what was and was not lawful. If something is a clear violation of the words or intent of the constitution, then the courts have an obligation to step in. But allowing a relativism interpretation to the Constitution, opens the door to anyone to believe just about anything. Someone could, for example, argue the life imprisonment without parole is "cruel and unusual punishment" for offenders under the age of 20 - and based on the SC relative interpretation of the clause, they could rule that unconstitutional too simply because someone, somewhere also believes that. The SC power should be held in check, otherwise we've only replaced a tyrannt in England with 5 here in the states wearing robes.
     
  17. Jul 5, 2005 #77 of 111
    Geronimo

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    As is often the case here we are going in circles. I guess everyone can make up their minds on the issue.
     
  18. Jul 5, 2005 #78 of 111
    jonstad

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    While polls usually show a majority supporting the death penalty, numbers are generally reversed when the question targets the execution of juveniles.(incidentally, the trend is the same when the possibility innocent people are executed is the query)

    One of the main organizing principles behind our Constitution, especially the Bill of Rights, is to prevent a tyranny of any kind, by a minority OR majority. So, the right to worship, speak and print whatever you wish(or own a gun) can be denied neither by a small powerful elite, nor a public opinion poll.

    I have already granted justification for this ruling is not as Constitutionally clear cut. However, there is precedent for the Court ruling on death penalty issues, and certainly other forms of punishment. And if Alabama, or Hawaii, should reinstitute the rack or hot iron tomorrow, I hope we all agree the Court should step in immediately to decide the Constitutionality thereof. "Immediately" as in, as soon as a case challenging it was presented to the Court. I doubt if it would take long.

    dj, I've always universally opposed the death penalty. The does not mean though I am for "coddling" criminals.(Although it should be noted "coddling" works quite well in some civilized societies resulting in much lower crime and recidivism rates.) If we accept the principle of "harsh conditions and strict dicipline" as being effective, the same principle should generally extend to juvenile offenders. I support the idea of separate juvenile facilities, but I don't believe conditions should be significantly different than adult facilities. Nor do I believe juveniles should be automatically released at some arbitrary age. In fact for many crimes, I would favor(for juveniles and adults) some form of open ended sentences, a minimum time served and release by competent judgement of their rehabilitation. This is kind of how parole boards work right now. But they don't seem to work that well. I'm suggesting something a little more comprehensive than a hearing every year or two.

    Ok, way off topic. I'll close here.:grin:
     
  19. Jul 5, 2005 #79 of 111
    SAEMike

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    It is unconstitutional for the Commander in Chief to lead the armed forces? :scratchin :shrug:

    That's some liberal genius right there!
     
  20. Jul 5, 2005 #80 of 111
    Bogy

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    No, that's the Constitution of the United States. Read it sometime.
     
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