Friday, May 01, 2009

Liberal vs. Conservative Perspective on the Souter Retirement

"Obama's own record and rhetoric make clear that he will seek left-wing judicial activists who will indulge their passions, not justices who will make their rulings with dispassion," said Ed Whelan, president of the conservative Ethics and Public Policy Center.

Nan Aron, president of the liberal Alliance for Justice, said, "We're looking for President Obama to choose an eminently qualified candidate who is committed to the core constitutional values, who is committed to justice for all and not just a few,"

I love how conservatives think people who interpret the constitution differently from them are somehow "activist judges" but someone who sneaks on the courthouse grounds in the middle of the night to install a statue of the 10 commandments is somehow "ruling with dispassion".

Look, nowhere in the constitution does it say that 8 year olds should be able to buy AK-47s (or any guns for that matter)at anytime they choose without any restrictions nor does it say that men have dominion over women's bodies. If you can find those passages in the constitution then I will agree with the "activist judge" thing. Until then, have a nice warm cup of shut the fuck up.


Patrick M said...

To clarify what an activist judge is (liberal or conservative), it's someone who, through rulings, creates laws that did not previously exist.

Roe v Wade happens to be a perfect example of this. It took what was a state issue and made it a federal one. The result is that states lost a large degree on the matter. In this, it is a bad ruling because it creates new federal law (and incessant screaming from the pro-lifers).

(Note: I don't want to get into a debate on the actual subject of the case, for obvious reasons)

So let me take the statement from Mr Aron:

"...who is committed to the core constitutional values..."

This would be good.

"...who is committed to justice for all and not just a few."

This is where it can become an issue. Justice, according to the Constitution, is laid out in the specific amendments, which are impartial in regards to the individual. But when terms like "economic justice" show up in Obama speeches, it could indicate his pick may have a similar worldview, which could entail applying his personal judgment to a situation, and not a simple interpretation based on what is laid out in the Constitution and precedents.

But we'll have to see the nominee first.

Look, nowhere in the constitution does it say that 8 year olds should be able to buy anytime they choose without any restrictions...I can't wait until you can cite someone even remotely sane that would be cool with this. Then you won't sound so completely fucking insane.

Toad734 said...

Umm, being a judge requires you to use judgment. Thats their job.

So you don't believe in economic justice? Its almost all you talk about with your "fair" tax plan. That is you and a bunch of rich people fighting for what you believe to be economic justice. And with regards to situations like Enron, there needed to be more economic justice; the rich lied and stole the money of the middle class plain and simple. They didn't have to pay even a fair percentage back either. That is not economic justice so ya, I do want a new Judge that would exercise some economic justice.

The other problem with what you are saying is that the constitution is a sword, not a scalpel. The authors of the constitution weren't writing it in an age of abortion, ak-47s, drugs, the internet, video, recorded media, etc. so that is why no one can ever really just stick to what it says in the constitution.

For instance, what is this word: Content ?

Its written on a piece of paper and you think its a noun like a table of contents but I see it and say its an adjective meaning happy. We may both be right but it has to be put in context in order for us to know. That is what a judge does, they put things in context and their belief system is always going to influence that context. I had a D.E.A. hat once. Some guy came up to me and asked if it was a hat from a company that made money counting machines. No one else had that problem but his first thought was a Dea machine, not Drug Enforcement Agency. His life and background and experiences influenced his perceptions.

I may see a needle laying on someones table and immediately think they are a junkie but someone who has lived with a diabetic will just assume that person has diabetes.

So, in that regards, they are all activists judges because nothing is really all that clear and absolute in the constitution. I mean, how did they miss slavery and women's right to vote or everyone the right to vote?? It was in the Constitution but they didn't perceive the constitution to include women, blacks, etc. It took an activist judge so say that it did.

Most of it is vague thought such as "just compensation", probable cause, freedom of speech, cruel and unusual, excessive bail or fines, etc. A judge has to apply historical context to these phrases and interpret them into the modern age and a liberal will interpret them differently than a conservative but who is to say what is right and wrong for sure?

And talk about about vague: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Yet it wasn't until 1870 when race was outlawed as a condition to vote.

Whats due process?

So lets stop the bullshit talk that someone who does think ak 47s should be sold at McDonalds because of the 2nd amendment and that person is just as much of an "activist judge" as the ones who decided a woman's uterus was private and therefore shouldn't be the business of old white men and if she doesn't want to pull a baby out of it, it is her right not to.

Patrick M said...

A couple thoughts:

Judgment and activism are two different things. I expect the former and abhor the latter where the judiciary is concerned.

I don't believe in economic justice. Here's why. Economic justice leans toward determining what a person is "due". The problem is that "due" is subjective. The opposite of this is capitalism, where the goal is to get what you can.

Now while there may be an in between that is acceptable to me, as pure capitalism does have problems that a free market (with appropriate protections on individual rights) does not have, there is a danger in going down that path that someday someone in government will decide the values of things. Wait, that's already happened, with wage controls and price controls. Shit.

The whole point of tax reform (aside from the FairTax specifically) is that the system is far too lopsided and subject to the whims of politicians, whether it be sin taxes, "windfall profits" taxes, or tax shelters and breaks for various constituencies. And to fix this, these instruments of government power must be taken away. The FairTax would do this. A flat tax system might. And any system that establishes limits on the power of government would be an improvement over the current system.

This reminds me of something you have brought up: the decline of the corporate tax rate. There's a reason it has. It's because many of the tax shelters that made that fake rate sustainable by allowing businesses to hide their money have gone away.

The other problem with what you are saying is that the constitution is a sword, not a scalpel.I can agree completely. That's why most every amendment after the Bill of Rights has this phrase (or a variation) in it:

Congress shall have power to enforce this article by appropriate legislation.The purpose of the courts is to determine if the legislation by Congress fits into the framework.

This is why there are laws concerning ...ak-47s, drugs, the internet, video, recorded media, etc. (I left out Abortion because it's been around for millennia, while the laws overturned by Roe v Wade were only around for a little over a century.)

As for the word "content" I actually started pronuncing it different ways until I managed to get to "cunt tent." Then I laughed.

I mean, how did they miss slavery and women's right to vote or everyone the right to vote??They wanted to get the Constitution ratified. The issue of slavery, specifically, was avoided because they considered establishing the country more important. What followed was 50 years of wrangling, a war, and three amendments to fix it. Oh, and some of that legislation from Congress after another century.

In short, it was the common understanding of the time, which did require laws and amendments, not judicial activism to remedy. the Dred Scot case and Brown v BoE rendered different decisions because the law changed (14th Amendment), not because the justices changed.

...someone who does think ak 47s should be sold at McDonalds because of the 2nd amendment...LMAO (because there's noting cogent I can say in response)

KIND AND GENTLE101 said...

I'll ask in a kind and respectful way why anyone would think the states have the right to ignore rights provided in our Constitution.

The document is flexible and has guided our Nation 200 years. To expect our courts to interpret and apply it using the thought process and experience of the 18th century mind is quite unrealistic.

Toad734 said...

What I meant with regards to slavery and voting is that technically they were included as it was written in a language that seemingly included all people. Everyone just assumed that it only pertained to white, protestant men and that’s the way it was applied for many years until some "activist judge" said, no this really does apply to everyone. I didn't mean they should have addressed Slavery specifically even though they inadvertently did.

The content thing was just an example of how words are to be interpreted and that different perspectives are going to come out with an entirely different meaning. For instance, when Jefferson wrote "All men are created equal", he didn't really mean all men because he was a slave owner. To him, blacks/slaves, were property, not "men". I see the phrase "all men" and take in literally. This is where judgment, not activism comes into play. You may not agree with a judges interpretation but it doesn't mean he is wrong or trying to act as a legislature.

But economic justice is what you are seeking with the fair tax. You don't call it that and you may not know you seek economic justice but you really do. Instead of welfare for the poor, as some see as economic justice, you want tax breaks for the rich which they feel would bring economic justice to them.

Another thing about the fair tax would be, as you said, all the tax incentives which would be erased such as saving for retirement. 401ks, home purchases, etc. things that encourage people to save and invest into the economy would be wiped out under a fair tax. So maybe its good that the government could no longer give tax breaks to tobacco farmers but there is a flip side to that I don't think the fair tax people have really considered as to its impact on the economy and behavior of the public as a whole.

Patrick M said...

Clarification on one FairTax point: Investing and saving are rewarded under the FairTax. Because they're not taxed. Only consumer spending is.

And I want everyone to pay less taxes (no exceptions, no exclusions).

Toad734 said...

What I am saying is that I am already rewarded by not having to pay taxes on what goes into my 401k under our current system. There is that additional advantage under our current tax code and saving is rewarded; no additional rewards for for saving under the fair tax and in fact there is a penalty because when I retire and pull that money out to live on it, I am then taxed at 30%. I think people would be less likely to save and or give to charity if there were no incentives to do so.

dmarks said...

"nor does it say that men have dominion over women's bodies."

Nor does anyone say that, at all.

"I mean, how did they miss slavery and women's right to vote or everyone the right to vote?? It was in the Constitution but they didn't perceive the constitution to include women, blacks, etc. It took an activist judge so say that it did."

It wasn't in the Constitution. The Constitution had to be changed, and it was.

Toad734 said...

"Nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

I wouldn't define not being able to vote and being a slave as "liberty". Nor would I define having your children stolen away from you to be slaves with no compensation, "just compensation".

Not to mention that the Declaration of Independence was adopted by Congress on July 4th 1776. In that official proclamation by the US government it states: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

I think its clear that at least on paper, not in practice, that the idea of liberty and freedom applied to all people. Thats how I see it. Back then, some people just assumed it applied to white protestant, land owning men.

This is where a judge comes in.

And by a preacher trying to get an amendment outlawing abortion, that is him essentially saying that "I am a man and I know what's best for your uterus and life because you as a woman shouldn't be able to make that decision for yourself". So they may not say that in so many words but that is what they are saying. It may be different if Women were in power but we have only just now had the first woman Speaker of the House and yet to have a woman President or more than 2 women Supreme Court justices when women make up 51% of the population.

dmarks said...

Can you quote one preacher saying that quote? Or it is really just pulled from your imagination? Besides, your argument is sexist, attempting to divert attention from the issue to the gender of your imaginary preacher.

Anyway, a majority of women are in the pro-life camp now.

Toad734 said...

I said that is what he is essentially saying when a person wants to outlaw abortion. And no, the majority of women in this country are not prolife, not that it matters if they are or not.

My argument is sexist?? No, a man thinking he knows what is best for a woman is sexist. If a mainly male supreme court outlaws abortion, that would be the message especially if the female on the supreme court disagreed.

dmarks said...

So, when a person is saying A, he is saying B. That is what it comes down to, since outlawing abortion has nothing to do with your fabricated quote. So you are just making it up.

Yes, your argument is sexist. You are basing opinions on the gender of those having opinions, not on the opinions themself. The same applies to the argument based on the gender of those in the Supreme Court. More sexism.

"If a mainly male supreme court outlaws abortion..."

You can't get any more sexist than your argument. What matters is the Constitutional validity of Supreme Court decisions. Not the gender of those on the court.

"And no, the majority of women in this country are not prolife, not that it matters if they are or not."

If we buy your sexist argument that it is the gender of the person of the opinion that matters, then this fact does indeed matter a lot.

The latest Gallup poll shows 49% of women are "pro-life" vs 44% who are "pro-choice".

It is just short of an actual majority, but more women oppose abortion now than favor it.

Toad734 said...

It doesn't matter if a majority support it or not. The same majority could also support slavery but it doesn't mean we bring slavery back to support the whims of the majority.

So if an almost all male supreme court tells women they no longer have the right to do what they want with their body, that is somehow not a bunch of men telling women what is best for them?? Are they then going to hand them an apron and a mop too?

dmarks said...

Both abortion and slavery deprive human rights, so a better analogy would be to equate those who favor abortion with those who favor slavery.

"So if an almost all male..."

The problem here is your sexism. Looking at people's gender instead of evaluating ideas on their own merit. Very blatant sexism on your part.

"....the right to do what they want with their body"

Which is a different subject, since stopping abortion is about the child's body. Abortion is the issue, not diversionary side subjects.

"Are they then going to hand them an apron and a mop too?"

That is an entire non-sequitur. Sure, we can hand them an apron and a mop. Along with a hammer and a lucky rabbit's foot.