Is it too early to discuss politics?

[Turendil]

oi

I respect you two immensely but you seem to think that judges get their ideas from thin air and that somehow a judge is free to make opinions from fiat.

Do you understand anything about the process whereby precedents are laid down and laws are made? I suggest that you start reading your history. Start with Maine's Ancient Law, then move on to his Early History of Institutions, After that pick up Either Blackstone's commentaries on the laws of England, or Coke's Institutes.

If you argue that both are true, then you have just proven my point about absolute power -- the judges are free to either look at the original intent or freely interpret it based upon modern situations. Any interpretation they want can be justified, and there are no checks or balances over them.

In brief, the use of precedent to create a new interpretation does not come from thin air. This is not an either/or situation think of it as both/and. The process of adjudication is inductive. First one considers the facts of the individual case. Next one looks at precedent to see how similar cases were handled in the past. After that a judge has to consider the changes in customs from the precedent in question to the present. Lastly one must think about the impact of a potential decision and the possible precedents created by a ruling.

Think of the process of adjudication as reconciling societal conceptions of justice with statute law. One small precedent at a time. The process is one of gradual evolution not one of drastic change.

[edonnelly]

I respect you two immensely but you seem to think that judges get their ideas from thin air and that somehow a judge is free to make opinions from fiat.

I'm not saying that all judges do this, but I contend that there is nothing to prevent a judge from doing so, so long as he/she can muster enough rhetoric to cloak his/her opinion in the guise of propriety.

From your past posts it seems to me that you believe that just because someone has studied the law (in law school) that he/she will always behave nobly in the exercise of his/her duties as a judge and will always follow what you believe is the appropriate balance of interpreting founding principles in light of past and current norms. I guess I don't share your naive trust in human nature, and I think that there need to be checks in place so that these judges actually do what it is you claim they do.

Also, if you are so sure that these judges always do what the history and tradition of jurisprudence deems appropriate, what would be the harm in codifying such requirements in the form of some sort of oversight (the nature of which is not necessarily of importance, but could take the form of something like requiring more than simple majority of SC justices to declare legislation unconstitutional or even some check that grants oversight power to those elected officials you were praising not too long ago)?

Alas, my trip begins shortly and I shall be incommunicado for a while, so I'm afraid I must depart the discussion at this point. I have enjoyed it, though.

[Turendil]

Also, if you are so sure that these judges always do what the history and tradition of jurisprudence deems appropriate, what would be the harm in codifying such requirements in the form of some sort of oversight (the nature of which is not necessarily of importance, but could take the form of something like requiring more than simple majority of SC justices to declare legislation unconstitutional or even some check that grants oversight power to those elected officials you were praising not too long ago)?

One last thing. The history of jurisprudence and legal training seems to set the guidelines for the argument. I know I'm a bit young and naive (at 24 who isn't) however it seems to me that when judges error they error within an established framework which makes correcting said errors much easier.

[GlottalGreekGeek]

I have followed this discussion with interest.

I would like to point out that the creators of the Constitution did not trust voters. That's why Senators were originally not voted directly by the people. That's why the President is still not voted directly by the people. That's also why they did not have Supreme Court Justices be elected - they wanted to free the judges from political pressure. It is true that the founders did not anticipate John Marshall and the judicial review, but they were still alive for Marbury vs. Madison, and if I recall my history, did not strongly react against him (if anybody can find evidence to the contrary, post it here). I am not against having increased supervision of the Supreme Court in itself, but I would be careful about the type of supervision because I think the Supreme Court will function best when it is not subjected to the same political pressure as Congress or the President.

Of course, while the Supreme Court has room to interpret, they do not have much power to enforce. For example, there are states where abortion is practically illegal, and the Supreme Court is not stopping that. Furthermore, the Supreme Court was not successful in protecting the Cherokees (for more info, see http://www.historynet.com/magazines/ame ... 26206.html ).

And just for the record, I would say the biggest error the Supreme Court has ever made was Korematsu vs. United States
( http://usinfo.state.gov/usa/infousa/fac ... rac/65.htm )
I recall that one of the dissenting judges said something like "I do not want this precedent (of depriving citizens without due process of law) to be established".

[Rhuiden]

In brief, the use of precedent to create a new interpretation does not come from thin air. This is not an either/or situation think of it as both/and. The process of adjudication is inductive. First one considers the facts of the individual case. Next one looks at precedent to see how similar cases were handled in the past. After that a judge has to consider the changes in customs from the precedent in question to the present. Lastly one must think about the impact of a potential decision and the possible precedents created by a ruling.

Think of the process of adjudication as reconciling societal conceptions of justice with statute law. One small precedent at a time. The process is one of gradual evolution not one of drastic change.

The problem is that sometimes (and more often recently) it does come from thin air. For example, what precedent did the judge in Massachusetts (and a couple more states since then) use to order the state legislature to pass a law that specifically legalized same-sex marriage. This is not a judges role.

I cannot agree with you that the process of adjudication is "reconciling societal conceptions of justice with statute law". That is not the defined role of judges. That is the job of the people through the election process. The people will elect representatives who will pass laws to "reconcile societal conceptions of justice with statute law" by changing existing law.

[Turendil]

The problem is that sometimes (and more often recently) it does come from thin air. For example, what precedent did the judge in Massachusetts (and a couple more states since then) use to order the state legislature to pass a law that specifically legalized same-sex marriage. This is not a judges role.

The same sex marriage debate could fall under the equal protection clause. By rights marriage is a contractual relationship between two people. What other than holy writ would you use to deny them marriage rights?

[Rhuiden]

I have followed this discussion with interest.

I would like to point out that the creators of the Constitution did not trust voters. That's why Senators were originally not voted directly by the people. That's why the President is still not voted directly by the people. That's also why they did not have Supreme Court Justices be elected - they wanted to free the judges from political pressure. It is true that the founders did not anticipate John Marshall and the judicial review, but they were still alive for Marbury vs. Madison, and if I recall my history, did not strongly react against him (if anybody can find evidence to the contrary, post it here). I am not against having increased supervision of the Supreme Court in itself, but I would be careful about the type of supervision because I think the Supreme Court will function best when it is not subjected to the same political pressure as Congress or the President.

Of course, while the Supreme Court has room to interpret, they do not have much power to enforce. For example, there are states where abortion is practically illegal, and the Supreme Court is not stopping that. Furthermore, the Supreme Court was not successful in protecting the Cherokees (for more info, see http://www.historynet.com/magazines/ame ... 26206.html ).

And just for the record, I would say the biggest error the Supreme Court has ever made was Korematsu vs. United States
( http://usinfo.state.gov/usa/infousa/fac ... rac/65.htm )
I recall that one of the dissenting judges said something like "I do not want this precedent (of depriving citizens without due process of law) to be established".

Good points GGG. The only problem is that the Supreme Court has become a political body. It is true that they are not elected and do not face the same pressure as Congress or the President but nevertheless, it has become very political. For proof of that consider how people keep a count of how many judges on the court are conservative, liberal, or moderate. Also, consider how the confirmation process for these judges has changed in the last 20-30 years. Both parties try very hard to confirm only those judges that will interpret the constitution in ways favorable to their agenda/beliefs. Also, consider when judges retire. They will usually only retire when there is a president in office who will appoint a successor who thinks and will rule like they did.

[Rhuiden]

The problem is that sometimes (and more often recently) it does come from thin air. For example, what precedent did the judge in Massachusetts (and a couple more states since then) use to order the state legislature to pass a law that specifically legalized same-sex marriage. This is not a judges role.

The same sex marriage debate could fall under the equal protection clause. By rights marriage is a contractual relationship between two people. What other than holy writ would you use to deny them marriage rights?

No person in our country is denied the right to get married. The catch is that the law defines marriage as between one man and one woman....not between two people of the same sex. Their equal protection has not been violated.

[Turendil]

what is marriage?

[Rhuiden]

what is marriage?

Do you want a legal definition or a Christian one?

[Turendil]

in your own words we'll hash it out from there.

[Rhuiden]

[Turendil]

this isn't any help. what do you think marriage is?

[Kasper]

Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130: "Marriage as understood in Christendom may be defined as the voluntary union for life of one man and one woman to the exclusion of all others."

This is marriage as traditionally understood in common law countries.

(mind you, the judge that said this actually divorced!!)

[Turendil]

My understanding was that marriage was a contractual relationship for the raising of children. Ergo to limit marriage to a man and a woman however right is to deny same-sex couples the same rights of asset sharing. What are the major problems with this definition.

[Rhuiden]

Before we move on any further with the definition of marriage discussion, lets jump back to the discussion of judges and their powers a moment.

Turendil, you never addressed what the judge in Massachusetts did by ordering the state legislature pass the he thought was appropriate. The same thing has happened in a couple other states since. Is this not an overstepping of their responsibility?

[klewlis]

My understanding was that marriage was a contractual relationship for the raising of children. Ergo to limit marriage to a man and a woman however right is to deny same-sex couples the same rights of asset sharing. What are the major problems with this definition.

The major problem I see with the definition is that it is not the one that is held either by the American law or by the majority of American people. So, you're creating a new definition and then saying that same sex marriage is a right by that definition. Just a tiny logical fallacy. ;)

[ndansmith]

Why don't we just completely separate government from marriage and vice versa?

Marriage, from a government perspective, is mostly a series of rights and benefits for two people who choose to get married. Power of attorney, hospital visits, tax benefits, etc. My question is why that is wrapped up in sexuality at all? There are some cases (elderly roommates comes to mind) where two people who are not sexually involved with one another really could form a useful partnership which would afford such legal benefits and be quite useful to both parties.

So, why doesn't the government only provide civil unions and leave marriage to the churches?

[Kasper]

Turendil and ndansmith, if these issues you raise are all that you consider is entailed in marriage, you'd be better off just executing a power of attorney and starting a trust fund to share your assets. If your relationship would break down then resolution would be much easier than that involved in marriage dissolution.

These issues are legal incidents of marriage, and incidents that vary greatly throughout the (common law) world. Eg. in Australia the tax benefits are negligible to non-existent, and de facto couples have the same property rights under the Property Law Act instead of the Family Law Act.

[Turendil]

my bad. It just seems to me that marriage has historically been more about economics and raising children to pass property onto than love or anything else.

[Kasper]

I take it you're not married then? If you are, i dare you to say that to your wife!

[Turendil]

no and I wouldn't say anything like that to any woman.

[GlottalGreekGeek]

no and I wouldn't say anything like that to any woman.

So you think only men are reading this discussion?

[Turendil]

Foiled again.

On the contrary, I just meant that I wouldn't propose that way to someone.

can you imagine the conversation?

Me: "Hey you have nice assets and a good portfolio as do I. Want to get married, raise a family and ensure the kids go to Harvard?"

Her; "You're an ass"

[Kopio]

My wife has a very nice asset. I tell her that all the time

And now for something completely different...

Anyone want a free Starbucks iTune? I have an extra song of the day. It's from a band called Band of Horses, the song is called No One's Gonna Love You. It's alternative. First person to PM me gets the download code.

[ndansmith]

Turendil and ndansmith, if these issues you raise are all that you consider is entailed in marriage, you'd be better off just executing a power of attorney and starting a trust fund to share your assets. If your relationship would break down then resolution would be much easier than that involved in marriage dissolution.

These issues are legal incidents of marriage, and incidents that vary greatly throughout the (common law) world. Eg. in Australia the tax benefits are negligible to non-existent, and de facto couples have the same property rights under the Property Law Act instead of the Family Law Act.

No, those are not all the issues I see in marriage. Those are the issues which are of concern to the government with respect to marriage.

[Chris Weimer]

my bad. It just seems to me that marriage has historically been more about economics and raising children to pass property onto than love or anything else.

The Romans had no problem saying that to their wives. For your credit, I think your reactors have been unfair and fallacious toward you. Illogical as well. Talk about your non-sequiturs and red herrings!

[GlottalGreekGeek]

my bad. It just seems to me that marriage has historically been more about economics and raising children to pass property onto than love or anything else.

Well, there is truth in what you say, but it's more complicated than that. For example, in societies with communal property (i.e. very little individual ownership), marriage is not a means of transferring property. There are also many different types of marriages in all different types of societies. For example, the Nuer is known for various unusual marriage practices. For example, a woman can marry another woman (as "husband and wife", not "wife and wife"), and the couple are considered part of the "husband" woman's family in terms of social status and property inheretance. Usually the woman who is the "husband" is considerably older than the woman who is the "wife", and the "wife" is the only woman in the marriage who will bear children. The Nuer also practice ghost marriage, in which a woman marries a dead man. Ghost marriages are just as popular as marriages to living men. Wealthy women prefer to marry dead men than living men because the husband owns everything within the marriage, but if the husband is dead, the wife manages the property.

However, I would argue that child-rearing is the main purpose of marriage in most societies, and economics secondary. Economics can be taken care of outside of individuals, but in most societies only a small handful of individuals are the primary guardians for each child, though different societies have different levels of communal responsibility for children - generally Western socieites are known for being very individualistic in their approach to child-rearing. Other societies regard excessive care for one's children exclusively to be unnatural. A missionary once told an Indian that he should monitor his wife more carefully to insure that her children are his as well. The Indian replied "You Europeans are so selfish that you only love your own children".

[Lex]

True but it is interesting that all who take that position seem to forget actually how the First Amendment reads. It reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. People seem to forget that second phrase. Why is that?

Tell me, when was the last time that the ACLU prevented kids from praying privately? When was the last time the ACLU sued the preacher on the street corner? When was the last time the ACLU shut down a church? When was the last time the ACLU prevented a kid from talking about Jesus at a private Christian school?

How would you feel if a Muslim were there speaking about how great Allah is and how Mohammed is the last true prophet and Jesus wasn't the son of God? How would you feel if I got up there and started saying how stupid God was and how those who believe in that imaginary being are intellectually bankrupt?

Keep all religion, even the pressure of the lack of, out of anything official. Why is that so hard for you to understand?

The First Amendment says "Congress shall make no law respecting an establishment of religion". It doesn't say anything about the states making such laws, or allowing religion in public schools. Several states in fact had officially established religions after 1787, IIRC.

So, it isn't hard for Rhuiden to understand that many people want a complete wall of separation. It just isn't what the Constitution says.

Oh, and I am an atheist.

[Lex]

I respect you two immensely but you seem to think that judges get their ideas from thin air and that somehow a judge is free to make opinions from fiat.

I'm not saying that all judges do this, but I contend that there is nothing to prevent a judge from doing so, so long as he/she can muster enough rhetoric to cloak his/her opinion in the guise of propriety.

I know this has already been mentioned, but...

A lot of people, myself included, think that the "penumbra of privacy" justifying the Roe v. Wade decision was nowhere to be found in the Constitution, but came instead from ... errrrr... the posteriors of the judges involved.

I don't think that abortion should be completely illegal, but this seemed to me a case where the states should have the say. After all, murder cases are usually taken care of at the state level, aren't they?

[GlottalGreekGeek]

Ah, but the 14th amendment says that "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."

Thus, since establishment of state religion could be interpreted as a violation of privileges or immunities, then the state governments could be limited this way.

Now back about a 100 years or so, most public schools did instruct students in Protestant Christianity. The people running the schools obviously didn't consider it a form of state-established religion. They felt they were just doing what the majority of the taxpayers wanted, which was education of their children in various areas including Protestant Christian religion. But boy did anybody who was not Protestant feel it a violation of their freedom of practice of religion. In reaction, the Catholics set up their own school system, and they kept on requesting state money to fund their schools, since they felt that by only subsidizing schools which taught Protestant Christianity the government was discriminating against non-Protestants (which is entirely correct). As public schools got less religious, the Catholics demanded less and and less that their schools get government subsidy, which I think is entirely fair.

Now, that's the past. I do think that students, and even teachers and administrators, should be allowed to express their own personal religious beliefs within a public school as long as it does not put excessive pressure for the entire school to accept those beliefs as the default and correct practice. But sometimes there's a fine line to follow. In a district where, let's say, 95% of the people are Baptist, then there could be a lot of pressure in schools on the non-Baptist people. Of course, it would probably extend throughout the community, not just the school system. And I think it is possible, in that environment even, to allow religious expression without crossing the line into state-established religion. But it's a fine line.

Now I grew up in the San Francisco public school system. There was no dominant religion/sect, which meant no single group could conceivably control the school system alone, and if it tried it would be stopped very fast, so religious expression was very open. Even teachers could and sometimes did discuss their own beliefs, though most decided not to (I know that there were supposed to have been two Jehovah's Witnesses teaching at my middle school, but I never learned who they were). However, I have very little knowledge of the dynamics a school system where the majority do practice a single religion.

[Lex]

Ah, but the 14th amendment says that "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."

Thus, since establishment of state religion could be interpreted as a violation of privileges or immunities, then the state governments could be limited this way.

Isn't that quite a stretch into the .... errmm ... penumbral region, unless the privileges and immunities protected can be construed to include the right not to be offended?

They felt they were just doing what the majority of the taxpayers wanted, which was education of their children in various areas including Protestant Christian religion. But boy did anybody who was not Protestant feel it a violation of their freedom of practice of religion.

Sure.

Now, that's the past. I do think that students, and even teachers and administrators, should be allowed to express their own personal religious beliefs within a public school as long as it does not put excessive pressure for the entire school to accept those beliefs as the default and correct practice. But sometimes there's a fine line to follow.

I live in Dearborn Heights, Michigan, near the largest concentration of Muslims in the United States, and possibly the largest outside the Middle East. And here many Muslims get offended by the expression of any religion other than their own. Christmas trees (which are not even truly Christian, but an artifact of pagan times) made of construction paper on classroom walls are considered offensive.

Here's the kernel of the problem; the idea of separation of church and state implies that no government action should offend the religious sensibilities of anyone. But what if the religious sensibilities are offended by the idea of the separation of church and state? It's impossible to maintain our current system of government, and still keep from offending fundamentalists somehow.

[annis]

Lex! A Ghost of Textkit Past.

Here's the kernel of the problem; the idea of separation of church and state implies that no government action should offend the religious sensibilities of anyone.

Is this right? I've never seen this as having to do with offensiveness (a truly wretched basis for politics) but with making sure no one uses the coercive powers of the state entrusted to them to impose or empower a particular religious view.

[GlottalGreekGeek]

Isn't that quite a stretch into the .... errmm ... penumbral region, unless the privileges and immunities protected can be construed to include the right not to be offended?

They felt they were just doing what the majority of the taxpayers wanted, which was education of their children in various areas including Protestant Christian religion. But boy did anybody who was not Protestant feel it a violation of their freedom of practice of religion.

Sure.

You can't have it both ways. If you agree that the inclusion of Protestant Christian religion in a public school's curriculum is a violation of a citizen's freedom, then you consider the sanctioning of a religion in a government-funded school to be illegal under the 14th amendment. As I said later in my last post, merely being offended by another person expressing personal views is not something to be protected against. But having a person who is receiving a government salary trying to force another person (who the state forces to go to school via truancy laws) into another set of beliefs does, in my opinion, constitute a violation of one's freedom.

[Lex]

Lex! A Ghost of Textkit Past.

Hehe. And they took away my llama JPEG, the farging bastages!

Yeah, I haven't been here because I have been negligent in my Greek studies for a long time. The morphology of the verbs, especially, has been a problem for me. I can't seem to remember all the rules, and so "reverse engineering" verbs in order to look up the lexical forms is difficult. And irregular forms... fagedaboudit. Is there any resource that indexes conjugated verbs to their lexical form? There doesn't seem to be a "501 Classical Greek Verbs, Fully Conjugated" book out there. I've seen a "Tutti Verbi" (or something like that) book on Amazon, but am not sure if it would be worth the investment.

Here's the kernel of the problem; the idea of separation of church and state implies that no government action should offend the religious sensibilities of anyone.

Is this right? I've never seen this as having to do with offensiveness (a truly wretched basis for politics) but with making sure no one uses the coercive powers of the state entrusted to them to impose or empower a particular religious view.

I'm not sure it's right, but to weasel out, I did use the word "implies". At least, it implies such to a lot of people.

I've never seen this as having to do with offensiveness (a truly wretched basis for politics) but with making sure no one uses the coercive powers of the state entrusted to them to impose or empower a particular religious view.

But according to some people, the public school system does "impose or empower a particular religious view", or at least a worldview; that of secularism. I can't say that these people are wrong, at least as long as attendance is virtually compulsory for those who can't afford private schooling.

I'm torn between my libertarian side, which thinks that the Gordian solution to the problem is to abolish the public school system altogether, and my growing conservative side, which thinks that imposing a certain worldview to turn back the decay and possible suicide of Western civilization wouldn't be such a bad thing.

[Lex]

Isn't that quite a stretch into the .... errmm ... penumbral region, unless the privileges and immunities protected can be construed to include the right not to be offended?

They felt they were just doing what the majority of the taxpayers wanted, which was education of their children in various areas including Protestant Christian religion. But boy did anybody who was not Protestant feel it a violation of their freedom of practice of religion.

Sure.

You can't have it both ways. If you agree that the inclusion of Protestant Christian religion in a public school's curriculum is a violation of a citizen's freedom, then you consider the sanctioning of a religion in a government-funded school to be illegal under the 14th amendment.

I was simply acknowledging that it was natural that non-Protestants would be offended. I was not agreeing that people have a right not to be offended, nor that your interpretation of the 14th Amendment is legitimate.

...But having a person who is receiving a government salary trying to force another person (who the state forces to go to school via truancy laws) into another set of beliefs does, in my opinion, constitute a violation of one's freedom.

It does violate one's freedom, IMO, but it does not violate the Constitution, IMO. Perhaps it should violate the Constitution (and it should therefore be amended (I am of two minds on the issue)), but as I see it, it does not currently do so, liberal interpretations of the 1st and 14th Amendments notwithstanding. Also, as my response to William alludes to, I believe that public schools forcing secular viewpoints down one's throat is also a violation of one's freedom.

In other words, the problem of religious freedom and public education is a very difficult, if not logically intractable, problem. Throw in the problem of whether a democracy requires public education to have educated voters (if they can be said to be educated now), and the problem of whether a sufficiently culturally Balkanized democracy can survive as such, and you have a real mess.

Whoever said that religion and politics shouldn't be discussed in public? What else that's truly interesting would one have to talk about?

[Chris Weimer]

Secularism isn't a positive worldview - it's a negative one. Saying secularism is a worldview is like saying bald is a hair color.

[Bert]

I was thinking; Is this llama Lex?

Hehe. And they took away my llama JPEG, the farging bastages!

I guess it is.

Whoever said that religion and politics shouldn't be discussed in public? What else that's truly interesting would one have to talk about?

Give this thread a chance and it'll find a way to twist and turn its way to language, languages or linguistics.

[annis]

I can't seem to remember all the rules, and so "reverse engineering" verbs in order to look up the lexical forms is difficult. And irregular forms... fagedaboudit. Is there any resource that indexes conjugated verbs to their lexical form? There doesn't seem to be a "501 Classical Greek Verbs, Fully Conjugated" book out there. I've seen a "Tutti Verbi" (or something like that) book on Amazon, but am not sure if it would be worth the investment.

The Tutti i Verbi Greci (All the Greek Verbs, Marinone, in English from Duckworth) is exactly the thing for matching puzzling forms to their dictionary citation form.

[annis]

Give this thread a chance and it'll find a way to twist and turn its way to language, languages or linguistics.

Here, let me help with that.