"On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment,"
"Whether it's good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution,"
Justice Antonin Scalia
16 comments:
I do understand the issue you have with legislating from the bench and if I also understand correctly, you favor slightly less power for the judicial branch because they are not as accountable to the electorate, right?
But, I think that where this riff gets messy is because clearly there are different ways to interpret the constitution and the people in power appoint the judges that reflect THEIR view, indirectly to reflect their voters, the citizens. In that way, there is accountability which should not be invalidated simply because it is not direct.
Further, there is debate about "rights". I might say the Constitution covers my right to choose the nature of my civil partnerships, or to have the choice to not have my tax money subsidize ideas espoused by Christians and excluding others. It is not possible to display the tenets of every possible religion on buildings WE pay for, so we should display none. This does not mean we should stop people from displaying anything on personal property.
I think REAL judges understand that the best ways to protect rights is to make them universal-not favoring one particular group.
We should not favor a religion, and on the flip side, many did not favor the ERA for similar reasons. Inverse logic.
Lily, you're argument doesn't hold water for a few reasons.
1. interpreting the constitution doesn't mean changing or adding to it. There is a process for that. It is not an easy process, and thats the way the founders wanted it. If you believe (like algore) that the constitution is a "living breathing" document then you don't have any problem with these unelected unaccountable judges making shit up.
2. You rightly point out that the people we elect appoint these judges, but the people we elect change every 4-8 years. The judges stay for decades.
3. Judges are human beings, they are fallable. So you say "real" judges, but that is very subjective. The 9th circuit is constantly usurping their power and being overturned by they supreme court. Which court is full of real judges? and which court is full of shit? I know what my answer is, but thats opinion. The only constant is the constitution and if it's always changing on the whims of elitist judges then we are basically being RULED by 9 people who we didn't ELECT.
I do hear you, Rhino, and have before when we have discussed this. But if it wasn't a breathing document, we would still have voter discrimination today.The contents are not at issue, the definitions are often at issue.
Now I agree that it would not be necessary if we simply stuck with the idea of what "rights" are in society as citizens. If we say a woman is a citizen, then it seems redundant to add an amendment saying that she has equal rights. They would be inherent. In that sense, I understand where you are coming from.But "rights" are not spelled out in a way that protects everyone, because the definition of a "full rights citizen" has changed.
I am not suggesting the Consitution be changed at our whim, or every time we want to clarify a nuance. Which is why the ban on gay marriage is not appropriate. Marriage as a contract is not gender specific, and marriage as a sacrament is religious. Neither seem within the bounds of what an amendment should seek to prohibit. It seems that this is covered.
But the interpretation is what matters. I agree that it either says it or it doesn't, but what is meant by a right changes over time. What it SAYS is viewed very differently.
No doubt you and I have different views of promoting the general welfare, right? About common defense? About church and state? Yet all are found there. "breathing" not required. What it sounds like you are saying is that the Constitution should not evolve in a linear manner like Case Law. You want laws to be consistent with the foundation of justice, and have judges decide if they do.
But a slave once fell under property laws. If nothing changed, we would not be able to say that a slave has equal protection under law as a citizen.
Lily, i disagree again,
The document is NOT breathing, and we wouldn't have voter discrimination. I am not a constitutional lawyer, but we don't need the supreme court to tell us who is a citizen. If that was the case we would still HAVE slavery, as we know from the Dred Scott decision.
Clearly the court was wrong in that case, and has been wrong in many cases since and before then.
You are correct in saying that i don't think the const. should evolve in a linear manner, and in fact i don't think it should evolve at all. If you want to change it, CREATE an ammendment. Let the PEOPLE decide what changes should be made, not a few unelected, unnaccountable elite lawyers who don't represent the majority of society.
In our system of government, the judges were supposed to have the LEAST power of all the branches of government. Right now they seem to have the MOST.
Church and state? Gay marraige? Abortion? let the people decide. Put it to a vote. If it's unconstitutional, like i think a gay marraige ban would be, then the court can strike it down. But if it's not unconstitutional, like holding foreign prisoners who are not even citizens of this country(no constitutional protection) in a prison in cuba, then the court should not even be involved, much less siding with the enemy.
As Scalia said to the aclu chick, someday we'll have super conservative court, and then the libs won't be so happy about all the power the court keeps gaining.
I am not saying the document itself should be "breathing" but I think the definitions change over time, is all. Different judges see things in different ways even if nothing was ever changed.
I think many liberals see the court as the resting place of reason, to uphold what is fair if not popularly decided. The whole tyranny of the masses "check". You'd think liberals would be in favor of the most representative democracy possible but they are not and that is why you view them as elitist. Governing for the people, because they know best. Do I have that at least right, Rhino?
I think liberals often favor federalized machinery because they mistakenly believe it to be less corrupt and often view state sovereignty as a step closer to redneck law and institutionalized racism. It does not often occur to us that state rights are more participatory.
We talk alot about democracy on the left but I dont think we really want it in the sense of the people deciding.
We want power mitgation, not representation.
I have always felt that most liberals have it ass-backwards. Rather than attempt to find a "right ro abortion" in the constitution I would simply point out that nowhere in that document does it grant the government the right to control a woman's womb.
I thought that the crux of the biscuit is the apostrophe.
Lily, i see the judges as elite because they are. Including the ones i agree with. They don't represent me, and i didn't vote for them. And yes you're correct that the definitions change, but that doesn't mean that we should have judicial activism. In other words, we see examples of judges making decisions that go AGAINST what the constitution says because THEY think its right, or because it's the popular thing to do at that time in history. (ref: gitmo,roe,dred scott) I also understand the "check" on the masses, and agree with you, but that's the constitution itself, not the judges themselves. That's why our government is set up as a republic, not a straight democracy.
Which is why (donsky)i also agree with the electoral college.
Zontar-
I do look at it exactly that way. I am pro choice because of the reason you say. But, unlike many liberals I would guess, I do think the Constitution covers the "right to life" and in my view, that means viability. I do think extracting an eight month old fetus is murder. But I dont think it is at five weeks.
The right to physical self determination is perhaps obvious, but then is it constitutional to forbid the sale of my kidney? Or to tell me I cant be a crackwhore? I say all those things should be allowed including humane suicide. But thats not what we have now. And yet nowhere does it say the government can control my kidney. Or my..well, you get the point.
Its not even just a womb issue.
If we say that anyone has the right to life and we curtail that life, we are violating their rights if they can live independently. Beyond that though, there is no explicit control of "physical being" mentioned, is there?
That includes in my view, who we have sexual relations with as well.
sexual relations.... i love it when lily talks dirty.
THATS talking dirty?
Damn Rhino you dont hold the bar very high then. Or should I say pole?
Where's my chickadee Anita?
Gay rights end where my eye sight begins. Now if someone would only tell the gays.
Donsky, i don't know what you're asking me?
Maybe i didn't make myself clear. I'm not saying there's no room for interpretation of the constitution, i'm saying the justices shouldn't be just making shit up out of thin air, or citing foreign law as a basis for their decisions etc.
As to the infallibility of SCOTUS, they're human beings.
"[T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes - rejecting all changes but through the channel itself provides for amendments."
-- Alexander Hamilton (letter to James Bayard, April 1802)
donsky, yes you're misinterpreting me.
I don't have a problem with the justices being appointed for life, i have a problem with them usurping the power of congress.
hey donk! nothing on liberal judges who let radical lawyers out of serving minimum mandatory sentences for treason? the aurora is not what it used to be...
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