Law, Crime & Justice

» njkaters - Judicial Activism

It is obvious that you are pro-legislature because it is not up to the legislature alone to change laws...that is why there are checks and balances, why the Supreme Court and circuit courts are so important to American law, and why the president is allowed to veto laws. We obviously have different views on the law but I think we can agree that the legislative branch is not the only branch that governs the evolution of law in the United States. Trust me, if the Supreme Court was weak and did nothing and the Congress was the dominating force, I would be making the same arguments as you in favor of a stronger Court. Like any government institution, it only works as well as its members. At this point, they aren't doing their jobs as arbiters of constitutional law.

-- posted by njkaters

» Brian Tubbs - Basic Government 101

It's not a matter of being pro-legislature. The Founding Fathers set up our government in a very basic framework:

The Legislature (listed first in the Constitution, which was no accident) was the exclusive lawmaking branch.

The Executive was charged with carrying out the law - and influencing public policy through the veto power and in his (so far it's been 'his') visible position as national leader.

The Judiciary was charged with interpreting the law - according to the intent and understanding of the legislative process. THAT principle can be seen in the writings of Hamilton (though he was "looser" on the point than the rigid Jefferson), Madison, Jay, and (going back) William Blackstone (the most influential jurist on America's founding).

That's the way it was set up. That's the way it is supposed to be. This should not come down to a matter of opinion.

The intent of the Founding Fathers should be a controlling influence on us, until and unless the nation decides to go a different direction via the constitutional process. Examples of that are nationalizing the right of women to vote, direct election of U.S. senators, reforming the Electoral College, etc., etc. These are all VALID, legitimate changes from the intent of the Framers. Why? Because the changes were made according to the prescribed, constitutional process.

It is NOT acceptable for the courts to redefine the Constitution or change the meanings of laws duly passed by the legislative branch. That was NEVER the intent of the Framers, including the "loose constructionists" like Hamilton.

Bringing this back to gay marriage...

If we are to bring about gay marriage in this country, it needs to be done the right way. Not by the Supreme Court redefining and expanding the meaning of the Fourteenth Amendment - but by one of two ways: 1) The states individually decide via their respective legislatures, or 2) The U.S. Constitution is amended to allow for gay marriage (just as the Constitution was amended in the early 1900s to give women the right to vote).

» njkaters - Basic Government 101

Just a short note, I understand and agree with your historical analysis and the title Basic Government 101 is pretty condescending. I am not ignorant of what the Founding Fathers believed and knew, I am saying that the very fact that people keep harkening back to the Founding Fathers means that we are forever determined to engage in partisan bickering. Instead of having people duel it out over what they think the Founding Fathers aid, how about we determine our own course? I agree that the voters should have an opportunity, which is why state amendments are more desirable than federal amendments. The question then is whether the full faith and credit clause can be applied from state to state when a few states may choose in favor of civil unions while others do not.

There are a lot of issues here that may not be translatable to the Founding Fathers because while they may have had some abstract idea of a continental nation, they had no concept of gay marriage, blacks and whites having the same rights (even among the most liberal members of the Const. Congress) or women having the same rights as men.

The Supreme Court is activist with its current roster of justices, whether we like it or not, and the isolation from popular dissent for justices is the only way it can work. Otherwise, we would have the same problems that we have in Congress with noncompetitive elections, corruption, and apathy.

-- posted by njkaters

» Brian Tubbs - conference call

» njkaters - Distinction

My apologies, Brian, it can be tough to discern tone sometimes, especially when you occasionally have people who post just to raise your hackles. This is a great vigorous debate that needs to be held nationwide. I will respond to your post later, I am at work right now. But Brian, thanks for sticking around for this debate, I think we all benefit by sharpening our reasoning skills.

-- posted by njkaters

» Brian Tubbs - Standing by...

No problem. I understand totally. I eagerly await your next entry in this discussion. Looking forward to ripping it to....oh sorry. :-) Just kidding.

» njkaters - Standing by...

Ha...good save, Brian. Anyway, I would like to clarify a point here. I think we agree on far more than would be indicative by this discussion. I think we SHOULD interpret laws based on their original intent. However, I know that hasn't happened very often throughout American judicial history and the judicial system has never been an insulated body. That said, I think if things are going to be interpreted based on the prevailing cultural and political winds of the day, I think it should be done so in favor of staying out of people's bed rooms instead of intruding upon them. They should also interpret laws in a way that aims to benefit healthy families, no matter their configuration, and protects people from persecution based on sexuality, race, religion, sex, etc. I hope we are on the same page here even if we aren't reading the book from the same perspective :-)

-- posted by njkaters

» Brian Tubbs - So, in other words....

If you're going to be a judicial activist, be an activist that favors the freedom of choice and privacy rights. Right?

I don't know. It sounds like you're saying - if you're going to be a judicial activist, make sure you agree with me.

I can relate to that line of thinking.

:-)

» njkaters - So, in other words....

Exactly right, Brian, on the first sentence. The tendency should always be toward liberty, choice, privacy rights, keeping government out of personal interactions. My friends would agree with your second point :-) Honestly I hope to start up discussions like this with all of my articles.

-- posted by njkaters

» Brian Tubbs - Wrapping this one up....

Well...I think one solution to this is for activist groups (be they pro-choice, pro-life, pro-gay rights, pro-traditional family, whatever) to minimize the influence of the courts on these issues - to focus, to the best extent possible, on the legislative process. And that requires patience and discipline.

In my opinion, judicial activism has a negative effect on citizen involvement. But if these activist groups will work through the legislative process - and thus through the GRASSROOTS - we can increase democratic participation in our government. And that's a good thing.

The topic of law is of great interest to me. I almost became a lawyer myself. I love constitutional law especially. So, I hope to be a regular participant here and look forward to future discussions.