JUDICIAL ACTIVISM, PLEDGE

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Topic:	Religions > Atheism
User:	""
Date:	15 Sep 2005 08:02:05 AM
Object:	JUDICIAL ACTIVISM, PLEDGE

For 25 of more years the other side has had a monopoly on word games and no
one has called them on it, effectively challenged them on it. They have
managed to turn liberal into a bad word, even moderate has been made
suspicious. Managed to make Democrat a bad word. Managed to turn equal
rights for a minority group into gay rights or special rights. Those are
just a few examples.
Now they are doing the same thing with the courts. They are using words
again to mislead, misrepresent and lie.
Make no mistake about it, judicial activism means any court ruling they do
not like. It has absolutely no other meaning and it appears once more that
no one has the balls to call them on it and keep calling them on it until
that fact finally cancels their dishonest word playing.
Case in point. Last night on Lou Dobbs I heard, either Dobbs or one of his
talking heads use judicial activism in reference to the District Court
pledge ruling. Dobbs also tossed the usual ***** zinger at the 9th
Circuit as he ended that segment of his show by saying the 9th Circuit, the
most liberal Circuit in the country and also the most overturned Circuit
on the country.
I never realized Dobs was a talking head for the right, he should be on Fox
instead of CNN or maybe CNN is in their pocket as well.
Another example:
http://www.nytimes.com/2005/09/14/national/14cnd-pledge.html
But it had immediate emotional impact. "This is an extraordinary and
blatant display of judicial activism," Kay Daly, president of the Coalition
for a Fair Judiciary, said in a statement issued here.
The American Center for Law and Justice had a similar reaction. "The pledge
clearly acknowledges the fact that our freedoms in this country come from
God, not government, and we're hopeful this flawed decision will ultimately
be rejected," said Jay Sekulow, the organization's chief counsel.
The fact of the mater is the original 9th Circuit ruling is the correct
ruling. Absolutely no Judges or ruling handed down since then has honestly
and in detail refuted that ruling, not even the recent 4th Circuit ruling
upholding the pledge in schools
***************************************************************
Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS � Hampton Roads SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE

http://members.tripod.com/~candst/index.html
****************************************************************
.

User: "Nathan A. Barclay"
Title: Re: JUDICIAL ACTIVISM, PLEDGE	15 Sep 2005 09:54:16 AM

In order to understand the danger of judicial activism, it is necessary to
recognize that with how law is currently applied in the United States, there
are no truly effective checks or balances when courts usurp legislative
powers. When the legislative and executive branches of government define
laws or policies and courts pass judgment on the constitutionality of those
laws or policies, we have a system of checks and balances because laws are
subject to independent review by a separate, independent branch of
government. But when courts themselves define policies and demand that
those policies be followed, the system of checks and balances falls apart.
The same branch of government both defines what the policy should be and
passes judgment over whether it has the constitutional power to define and
enforce that policy.
If all the judge did in the Pledge case was say that government cannot
require teachers and students to say a version of the Pledge that includes
"under God," I do not view that as judicial activism. If that is all the
judge did, he told government that it could not do something, but he did not
in essence pass a law making it illegal to say "under God" in the Pledge in
schools. Thus, if teachers and students want to say "under God," the court
has not destroyed their liberty to do so.
But if the judge went farther and ordered that versions of the Pledge that
include "under God" not be said in schools, that is a usurpation of
legislative authority. The judge did not merely limit what actions
government could take, but in essence made a law himself that made an action
by citizens illegal.
Our founders' concept that the courts would be the least dangerous branch of
government hinged on the idea that the courts had power only to review and
interpret law, not to make law themselves. But when activist judges
substitute laws and policies of their own choosing for laws and policies
chosen by the people's elected representatives, that entire concept falls
apart and the checks and balances built into the system to protect against
abuses of judicial power prove to be totally inadequate.
<buckeye-ELO@nospam.net> wrote in message
news:qgaii1hmeuieg01hnhc4qdrgefqqi489dm@4ax.com...

For 25 of more years the other side has had a monopoly on word games and
no
one has called them on it, effectively challenged them on it. They have
managed to turn liberal into a bad word, even moderate has been made
suspicious. Managed to make Democrat a bad word. Managed to turn equal
rights for a minority group into gay rights or special rights. Those are
just a few examples.

Now they are doing the same thing with the courts. They are using words
again to mislead, misrepresent and lie.

Make no mistake about it, judicial activism means any court ruling they do
not like. It has absolutely no other meaning and it appears once more that
no one has the balls to call them on it and keep calling them on it until
that fact finally cancels their dishonest word playing.

Case in point. Last night on Lou Dobbs I heard, either Dobbs or one of
his
talking heads use judicial activism in reference to the District Court
pledge ruling. Dobbs also tossed the usual ***** zinger at the 9th
Circuit as he ended that segment of his show by saying the 9th Circuit,
the
most liberal Circuit in the country and also the most overturned Circuit
on the country.
I never realized Dobs was a talking head for the right, he should be on
Fox
instead of CNN or maybe CNN is in their pocket as well.

Another example:
http://www.nytimes.com/2005/09/14/national/14cnd-pledge.html
But it had immediate emotional impact. "This is an extraordinary and
blatant display of judicial activism," Kay Daly, president of the
Coalition
for a Fair Judiciary, said in a statement issued here.

The American Center for Law and Justice had a similar reaction. "The
pledge
clearly acknowledges the fact that our freedoms in this country come from
God, not government, and we're hopeful this flawed decision will
ultimately
be rejected," said Jay Sekulow, the organization's chief counsel.

The fact of the mater is the original 9th Circuit ruling is the correct
ruling. Absolutely no Judges or ruling handed down since then has
honestly
and in detail refuted that ruling, not even the recent 4th Circuit ruling
upholding the pledge in schools

***************************************************************
Posting and reading from alt.politics.usa.constitution OR alt.education

You are invited to check out the following:

The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm

American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm

The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html

[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]

HRSepCnS � Hampton Roads SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/

[Its not just Hampton Roads folks who are members]

***************************************************************
. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why
"a
page of history is worth a volume of logic." New York Trust Co. v.
Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE

http://members.tripod.com/~candst/index.html
****************************************************************

User: ""
Title: Re: JUDICIAL ACTIVISM, PLEDGE	15 Sep 2005 07:21:28 PM

"Nathan A. Barclay" <nbarclay@hiwaay.net> wrote:

:|In order to understand the danger of judicial activism, it is necessary to
:|recognize that with how law is currently applied in the United States, there
:|are no truly effective checks or balances when courts usurp legislative
:|powers. When the legislative and executive branches of government define
:|laws or policies and courts pass judgment on the constitutionality of those
:|laws or policies, we have a system of checks and balances because laws are
:|subject to independent review by a separate, independent branch of
:|government. But when courts themselves define policies and demand that
:|those policies be followed, the system of checks and balances falls apart.
:|The same branch of government both defines what the policy should be and
:|passes judgment over whether it has the constitutional power to define and
:|enforce that policy.

The system of checks falls apart when one party controls all three branches
of government which is the case right now
DON'T FORGET: the constitution was written with no thought of parties.
There was no protection written into the Constitution for the current
situation where all three branches of government are controlled by one
political party
Here is a thought. I don't know who actually wrote this, I borrowed it and
a the only name I could find that might be associated with it was Norm
"We are at a crossroad in American history. Never in the history of our
country has an extremist group been so successful in controlling the
country. If you are not outraged then you are not paying attention."
You might consider this as well:
Religious conduct in the context of the Constitution's structure
Freedom of religion is an integral part of the Constitution, not a
principle somehow divorced from the rest of the document. The same
underlying principles that drove the Framers' other choices also set
in motion their placement of religion within American society. Any
theory of the First Amendment that fails to take into account the
Constitution's larger structure is not complete.
One principle infused throughout the Constitution is distrust of the
powerful. The Framers believed that every individual and every
institution holding power was likely to abuse that power.4 They did
not trust the King, the executive, the legislatures, and even the
people, and therefore no single entity could be trusted to govern.
Distrust led the Framers to the checks and balances that are now so
familiar. The three branches �legislative, executive, and judicial �
were to check each other, and the federal and state governments were
mutual checks.5
It should come as no surprise that the Framers started from a position
of distrust. The years between the Declaration of Independence and the
Constitutional Convention were years of disillusionment. The
Declaration was an ebullient Enlightenment document that reflected the
freed colonists' optimism about the future after breaking ties with
the British monarchy and Parliament. There was widespread hope and
expectation that they would institute the first truly successful
republican form of government the world had seen. The Articles of
Confederation established 13 separate states, asserting "Each state
retains its sovereignty, freedom, and independence, and every power,
jurisdiction, and right, which is not by this Confederation expressly
delegated to the United States, in Congress assembled."6 Because the
Continental Congress had no power to force states to do other than
they desired, the Articles recognized 13 wholly independent
sovereigns. To say that the state governments that followed did not
deliver on the Declaration's hopes is to severely understate the
matter. Because of their distrust of the king, the newly formed states
disabled their governors and therefore placed virtually all governing
authority into the hands of the state legislatures.
That move would teach them the hard lesson that unchecked power is
abused power. . .
God vs. The Gavel, Religion and the Rule of Law Marci Hamilton
Cambridge University Press 2005 p 276
**************************************************************************
Separation of church and state was one of the checks and balances too.
Yea, that same separation of church and state you would like to see ended.
its in the biggest danger it has ever been in because one extreme aspect of
one political party controls all three branches of the government.

:|If all the judge did in the Pledge case was say that government cannot
:|require teachers and students to say a version of the Pledge that includes
:|"under God," I do not view that as judicial activism.

Good for you.

:| If that is all the
:|judge did, he told government that it could not do something, but he did not
:|in essence pass a law making it illegal to say "under God" in the Pledge in
:|schools. Thus, if teachers and students want to say "under God," the court
:|has not destroyed their liberty to do so.

I suggest you read the opinion instead of making all these "IF" comments.
Judge rules School Pledge unconstitutional
http://207.41.18.73/caed/DOCUMENTS/Opinions/Karlton/05-17.pdf
***************************************************************

:|But if the judge went farther and ordered that versions of the Pledge that
:|include "under God" not be said in schools, that is a usurpation of
:|legislative authority.

More pronouncements of barclayisms

:|The judge did not merely limit what actions
:|government could take, but in essence made a law himself that made an action
:|by citizens illegal.

Guess what, judges make law when they make rulings. All judges, liberal
judges, moderate judges, conservative judges. Republican appointed judges,
Democrat appointed judges, even elected judges.
How many times have we went over this same thing in the past?

:|Our founders' concept that the courts would be the least dangerous branch of
:|government hinged on the idea that the courts had power only to review and
:|interpret law, not to make law themselves.

Our founders, most of whom were lawyers were very familiar with English
Common Law, that is JUDGE MADE LAW.
There is the legislature. They "make" law.
The president can "make" law by executive orders.
Various agencies can "make" law and is usually called administrative law
Then each time a court makes a ruling it has "made" law.
=====================================================================
"Constitutional Process is a fascinating exploration of how the Supreme
Court makes law. . . .Peppered with key insights about substantive
constitutional doctrine, Stearns' intricate yet elegant argument is a
fresh and compelling contribution to the study of judicial process."
--Evan Caminker, University of Michigan Law School"
http://www.press.umich.edu/titles/11130.html
The decisions of the Supreme Court are binding.
===================================================
Legislatures and courts are co-operative law-making bodies.
SOURCE: An Introduction to Legal Reasoning, Edward H. Levi, The University
of Chicago Press, (1949) p 32
---------------------------------------------------------------------------------------------------
"The basic pattern of legal reasoning is reasoning by example. 2 It is
reasoning from case to case. It is a three-step process described by the
doctrine of precedent in which a proposition descriptive of the first case
is made into a rule of law and then applied to a next similar situation.
The steps are these: similarity is seen between cases; next the rule of law
inherent in the first case is announced; then the rule of law is made
applicable to the second case. This is a method of reasoning necessary for
the law, but it has characteristics which under other circumstances might
be considered imperfections.
SOURCE: An Introduction to Legal Reasoning, Edward H. Levi, The University
of Chicago Press, (1949) p. 1-2
======================================================
English Common Law revolved heavily around the concept of "Judge made law."
Judge-made law. A Phrase used to indicate judicial decisions which construe
away the meaning of statutes, or find meanings in them the legislature
never intended.Its perhaps more commonly used as meaning, simply, the law
established by judicial precedent and decisions. Laws having their source
in judicial decisions as opposed to laws having their source in statutes or
administrative regulations.
Black's Law Dictionary, Abridged Sixth Edition, Centennial Edition,
(1891-1991) West Publishing Company, (1991) p. 585-86
======================================================
SOURCES OF LAW
THE UNITED STATES has many sources of law because of our federal
system. The United States Constitution is the nation's charter and the
source of authority for federal laws and the federal courts. The
Constitution delineates the limits of federal power and reserves
considerable authority to the states. Each state has authority over persons
and activities within its boundaries. State governments, in turn, delegate
some authority to local governments. Each of these governmental units may,
within certain constraints, make law.
Understanding how laws arise and how they affect our activities
requires an understanding of two key concepts: (1) the relationships among
laws within a single jurisdiction and (2) the relationships among federal,
state, and local governments in the system. This chapter describes these
two concepts and briefly describes source material for researching the
law.
The Hierarchy of Laws
Four basic kinds of laws exist: constitutions, statutes or
ordinances, administrative regulations, and judge-made law. [NOTE, JUDGE
MADE LAW] These sources form a hierarchy with constitutions at the top and
judge-made laws at the bottom. Constitutions include the United States
Constitution as well as state constitutions. Within a jurisdiction, the
constitution is the highest authority; statutes, regulations, and common
law must not conflict with the constitution.
Statutes create categorical rules to address particular problems.
The Food, Drug, and Cosmetic Act, for example, was adopted by Congress to
ensure the safety and healthfulness of the nation's food supply. A statute
is controlling as to the subject it encompasses, unless the statute is
unconstitutional.
The federal government and most states have many agencies with
diverse responsibilities (e.g., labor, veterans' affairs, transportation,
commerce, environmental protection). Administrative regulations are rules
promulgated by such agencies to help implement specific statutes. For
example, the "laws" relating to declarations of nutritional information
required on the packages of certain foods are largely administrative
regulations promulgated by the Food and Drug Administration under the Food,
Drug, and Cosmetic Act, Properly adopted administrative regulations have
the same legal effect as statutes, so long as they are consistent with the
Constitution and relevant statutes.
Judicial decisions often interpret or apply constitutions,
statutes, or regulations. At other times, when such law is not applicable,
they interpret or apply a body of judge-made law known as the common law.
In either situation, law is made whenever a court decides a case. Once a
constitutional provision, statute, or regulation has been construed by a
court, that construction of the statute becomes law.
(SOURCE OF INFORMATION: A Practical Guide to legal Writing & Legal Method,
Second edition. John C. Dernbach, Richard V. Singleton II, Cathleen S.
Wharton, Joan M. Ruhtenberg, Fred B. Rothman & Co. (1994) pp 9-10)
[NOTE: IN EITHER SITUATION, LAW IS MADE WHENEVER A COURT DECIDES A CASE..]
=====================================================================
LAW. That which is laid down, ordained, or established. A rule or method
according to which phenomena or actions co-exist or follow each other. Law,
in its generic sense, is a body of rules of action or conduct prescribed by
controlling authority, and having binding legal force. That which must be
obeyed and followed by citizens subject to sanctions or legal consequences
is a law. Law is a solemn expression of the will of the supreme power of
the State.
Calif.Civil Code, p 22.
The "law" of a state is to be found in its statutory and constitutional
enactments, as interpreted by its courts, and, in absence of statute
law, in rulings of its courts (i.e. case law).
[NOTE, AS INTERPRETED BY ITS COURTS, AND IN THE ABSENCE OF STATUE LAW, IN
RULINGS OF ITS COURTS.- This is where the original poster is getting
into problems with his understanding of law.]
The word may mean or embrace: body of principles, standards and rules
promulgated by government constitution or constitutional provision; statute
or enactment of legislative body; administrative agency rules and
regulations; judicial decisions, judgments or decrees; municipal
ordinances; or, long established local custom which has the force of law.
[NOTE, JUDICIAL DECISIONS- again the same problem area for the original
poster]
With reference to its origin, "law" is derived either from judicial
precedents, from legislation, or from custom.
[NOTE, JUDICIAL PRECEDENTS- same problem area for the original poster]
As to the different kinds of law, or law regarded in its different
aspects, see Absolute law; Adjective law; Administrative law; Bankruptcy
Code; Canon (Canon law); Case law; Civil law; Commercial
law; Common law; Conclusion of law; Conflict of laws; Constitutional law;
Criminal law; Custom and usage; Ecclesiastical law; Edict; Enabling
statute; Equity; Evidence, law of; Flag, law of; Foreign laws; General law;
International law; Local law; Maritime; Maritime law; Marque, law of;
Martial law; Mercantile law; Military law; Moral law; Municipal law;
Natural law; Ordinance; Organic law, Parliamentary law; Penal laws;
Positive law; Private law; Probate; Procedural law; Prospective law;
Public law; Remedial laws and statutes; Retrospective law; Revenue law or
measure; Road (Law of the road); Roman law; Special law; Statute;
Substantive law; Unwritten law; War; Written law.
SOURCE OF INFORMATION: Black's Law Dictionary, abridged Sixth Edition,
Centennial Edition (1891-1991) West Publishing, St paul Minn, (1991) pp
612)
***************************************************************
Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS � Hampton Roads SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members]
***************************************************************
. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why
"a page of history is worth a volume of logic." New York Trust Co. v.
Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes,
J.). Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir.
1992)
. . .
****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************

:|>
:|>
:|

User: ""
Title: Re: JUDICIAL ACTIVISM, PLEDGE	16 Sep 2005 10:07:07 AM

"Nathan A. Barclay" <nbarclay@hiwaay.net> wrote:

Good for you.

:|But if the judge went farther and ordered that versions of the Pledge that
:|include "under God" not be said in schools, that is a usurpation of
:|legislative authority.

More pronouncements of barclayisms

:|The judge did not merely limit what actions
:|government could take, but in essence made a law himself that made an action
:|by citizens illegal.

:|>
:|>
:|

User: "Nathan A. Barclay"
Title: Re: JUDICIAL ACTIVISM, PLEDGE	16 Sep 2005 12:21:34 PM

<buckeye-ELO@nospam.net> wrote in message
news:396li11pibsv5pi9q30jg66hei3qtrcbsc@4ax.com...

The system of checks falls apart when one party controls all three
branches
of government which is the case right now

That depends on how monolithic and united the party is. If judges are
willing to blindly follow whatever the party leadership wants to do, the
system falls apart. But all it takes os one conservative on the Supreme
Court having enough backbone to stand with the liberals, and abuses of
legislative power can be checked.

DON'T FORGET: the constitution was written with no thought of parties.
There was no protection written into the Constitution for the current
situation where all three branches of government are controlled by one
political party

Here is a thought. I don't know who actually wrote this, I borrowed it and
a the only name I could find that might be associated with it was Norm

"We are at a crossroad in American history. Never in the history of our
country has an extremist group been so successful in controlling the
country. If you are not outraged then you are not paying attention."

Um, I have three words for you. FDR New Deal. Compared with FDR's
extremism (and there can be no doubt that FDR was very extreme by the
standards of what had come before him), current-day Republicans are not the
slightest bit extreme.
When I hear Republicans accused of extremism, it is almost invariably a
result of making mountains out of molehills (if not grains of sand). The
problem is, such cries of extremism create a serious danger that if the
Republicans do do something that is genuinely extreme, we'll be so used to
hearing Democrats cry wolf that most of us probably won't listen.
Ultimately, the last, best protection of our Constitution is the votes of
the American people. If we vote for people who will protect our
Constitution, it is safe. If we don't, it isn't.
<snip>

Separation of church and state was one of the checks and balances too.
Yea, that same separation of church and state you would like to see ended.

Not ended. Restored. If the wall of separation between church and state
had stood high and impenetrable, government could never have become involved
in a large part of children's lives in a way that pushed organized religion
out of the way. The question of what roles religion should or should not
play in children's lives during school hours belongs squarely on the church
side of the wall and not at all on the state side. A high, strong wall of
separation between church and state cannot allow any amount of government
funding for children's eduction to change that fact.

its in the biggest danger it has ever been in because one extreme aspect
of
one political party controls all three branches of the government.

Do you really believe this? If so, how do you explain the fact that public
prayer isn't back in the public schools? Why did Bush nominate Roberts
instead of ramming through someone like Scalia or Thomas with a crystal
clear and somewhat activist conservative track record?
What we really have is a situation where (1) Bush is generally fairly
moderate by Republican standards and (2) even if Bush and most of the
Republicans would want to do something genuinely extreme, it would take only
a handful of moderate Republicans siding with the Democrats to stop them.
So the power of the conservative wing of the Republican Party is a lot more
limited than you're willing to admit.
.

User: "Bob LeChevalier"
Title: Re: JUDICIAL ACTIVISM, PLEDGE	15 Sep 2005 11:08:02 AM

"Nathan A. Barclay" <nbarclay@hiwaay.net> wrote:

But if the judge went farther and ordered that versions of the Pledge that
include "under God" not be said in schools, that is a usurpation of
legislative authority. The judge did not merely limit what actions
government could take, but in essence made a law himself that made an action
by citizens illegal.

It isn't "illegal". They cannot be charged with a felony or
misdemeanor.
And the judge did not rule that "under God" cannot be said in schools.
He said that the pledge including "under God" cannot be "recited" in
schools. "Recitation" in school is a required response to a teacher's
lead or direction.

Our founders' concept that the courts would be the least dangerous branch of
government hinged on the idea that the courts had power only to review and
interpret law, not to make law themselves.

Nonsense, as usual.

But when activist judges
substitute laws and policies of their own choosing for laws and policies
chosen by the people's elected representatives,

They don't substitute laws. They throw out laws, leaving no law in
its place. But since government cannot act without the authorization
of law, this has the effect of limiting or constraining government.
Normally the right would applaud the limiting or constraining of
government, but when it comes to imposing their peculiar morality on
society, they don't want government constrained.
Indeed, as a prior discussion shows, it is the conservative judges on
the USSC that have voted most often to overturn laws. So if activist
judges are a concern, it is conservative activist judges that we
should be worried about.

that entire concept falls
apart and the checks and balances built into the system to protect against
abuses of judicial power prove to be totally inadequate.

There are plenty of checks and balances.
lojbab
--
lojbab

Bob LeChevalier, Founder, The Logical Language Group
(Opinions are my own; I do not speak for the organization.)
Artificial language Loglan/Lojban: http://www.lojban.org
.

User: "Nathan A. Barclay"
Title: Re: JUDICIAL ACTIVISM, PLEDGE	15 Sep 2005 07:28:52 PM

"Bob LeChevalier" <lojbab@lojban.org> wrote in message
news:7skii1hemtckketeuvr4pjqn7d3t38hquq@4ax.com...

And the judge did not rule that "under God" cannot be said in schools.
He said that the pledge including "under God" cannot be "recited" in
schools. "Recitation" in school is a required response to a teacher's
lead or direction.

Not necessarily. The leadership or direction may come from students or
(especially indirectly) from students' families. Further, the fact that the
Pledge is recited in a classroom does not automatically mean that children
are required to participate in that recitation. Therefore, prohibiting
recitation of the Pledge goes beyond merely prohibiting government coercion.

But when activist judges
substitute laws and policies of their own choosing for laws and policies
chosen by the people's elected representatives,

Children are not part of government at all. If a group of children wants to
recite the Pledge in a public school classroom, they have the ability to do
so unless action is taken to stop them. If government cannot act without
the authorization of law, then it follows that government cannot act to stop
the children from doing so.
As for teachers, teachers are far more than just an arm of government. They
are citizens in their own right, and they are also entrusted to serve
children and their families. Thus, in the absence of authority from
government, teachers have other sources of authority that they can draw on.
The general rule is not that teachers are allowed to do only what government
explicitly says they can, but rather is that teachers have broad discretion
as long as government does not overrule what they want to do in their
classrooms.
Therefore, recitation of the Pledge is not something that can take place
only with explicit authorization from government, but rather is something
that may, depending on the teacher, students, and families in a particular
case, take place naturally and organically without government saying
anything one way or the other. It is simply not true that an absence of
authorization is all that it takes to block the action. What it takes to
block the action entirely is an active threat of some kind of civil or
criminal penalty. That requires making law, not just striking down law..

Normally the right would applaud the limiting or constraining of
government, but when it comes to imposing their peculiar morality
on society, they don't want government constrained.

There is a huge difference between constraining government and using
government power to constrain the actions of teachers and students. If all
the judge did was strike down a legal requirement that classrooms include a
version of the Pledge that includes "under God," I'm inclined to regard that
action as something entirely appropriate that protects freedom. But if the
judge went farther and limited the actions of teachers and students, not
just the actions of government, then the judge unconstitutionally usurped
legislative authority and unilaterally took rights away from some people for
the benefit of others.

Indeed, as a prior discussion shows, it is the conservative judges on
the USSC that have voted most often to overturn laws. So if activist
judges are a concern, it is conservative activist judges that we
should be worried about.

The question is not, "Do judges overturn laws," but rather is, "Why do they
overturn laws?"
It is not activist for a judge to say, "This decision is properly reserved
to the repective states, not delegated to the federal government." When
judges issue such rulings, they are not seeking to take power out of the
hands of elected leaders and exercise the power themselves. Rather, their
role is to arbitrate the question of which set of elected leaders, state or
federal, take precedence regarding the issue in question. That role is
extremely important since the Tenth Amendment explicitly reserves the powers
not delegated to the United States nor prohibited by it to the states to the
respective states and their citizens.
It is not activist for a judge to say, "This law is deliberately designed to
give Group A a clearly unfair advantage at the expense of Group B, and
therefore violates the equal protection of the laws." That was true in
Brown v. Board of Education where the courts ruled deliberate discrimination
against minorities unconstitutional, and it was equally true in Gratz v.
Bollinger when the University of Michigan gave some students an automatic
advantage over others in its admissions policies solely because of their
race. When government is allowed to engage in such deliberately unequal
treatment, the democratic process is in serious jeopardy because politicians
can sell their votes in exchange for promises of advantages for particular
groups at other citizens' expense.
It is not activist for a judge to say, "This right is supported by
long-standing tradition, and therefore involves an important issue of
liberty even though the right is not explicitly enumerated by the
Constitution." That is the core of the logic used in Pierce v. Society of
Sisters (decided in 1925) in ruling that the state of Oregon had no
legitimate interest in forcing families to send their children to public
schools instead of private schools that could possibly rise to the level of
trumping the right of parents to make decisions regarding their children's
upbringing and the right of private schools to do business. The basic
concept that important liberty interests protected by long-standing
tradition can exist even though the Constitution does not explicitly
enumerate them as rights is a sound one, especially in light of the Ninth
Amendment's clear recognition that the enumeration of rights in the Bill of
Rights was not intended to be exhaustive.
The problem with activist judges is that they seek not just to block
unconstitutional laws but to impose their own "solutions" to society's
problems in the place of existing law. Activist judges did not stop at
saying, "You can't have deliberate segregation," but ordered specific
solutions regarding how to make schools more racially mixed - solutions that
forced a significant burden onto children in the form of greater travel
times from court-ordered bussing. The judges didn't just block
unconstitutional actions. They usurped legislative power by forcing
governments to take specific actions of the judges' choosing.
Similarly, the expulsion of public prayers from public schools went far
beyond merely prohibiting states from acting. For the activist judges to
make their "solution" work, they had to threaten school systems with
punishment if they did not deliberately, actively prevent public prayers
from taking place in their classrooms.
In other cases (and some of the same ones), activist judges put their own
interpretations of a controversial constitutional issue ahead of both the
interpretations of the elected branches of government and long-standing
tradition. There is nothing particularly arrogant about a judge standing on
the side of traditionally respected rights against new and largely arbitrary
attempts to violate those rights. But it is extremely arrogant for judges
to stand against both the will of the voters and decades, centuries, or even
millennia of tradition unless either (1) the facts and law in a case are so
strong as to leave essentially no rational basis for disputing their
conclusion (as in the case of Brown), or (2) what they want to do poses no
plausible danger to anyone's legitimate rights or interests (as in the cases
of Loving and Griswold).
The true danger of judicial activism is that activist judges do not merely
block use of government power to give some people an advantage at the
expense of others, but deliberatley and unilaterlally force some people to
make sacrifices for the benefit (or alleged benefit) of others. Thus,
activist judges do not merely protect freedom, but make themselves a direct
threat to other people's freedom. That is why they draw so much opposition.
If conservative judges would issue rulings that make them a similarly
serious threat to people's ability to use the democratic process to defend
their rights and legitimate interests, I have little doubt that they would
draw similar opposition. But can you cite any clear examples where
conservative justices unilaterally, in opposition to the legislative
process, forced people to give up rights or opportunities for the benefit or
alleged benefit of others?

that entire concept falls
apart and the checks and balances built into the system to protect against
abuses of judicial power prove to be totally inadequate.

There are plenty of checks and balances.

Oh? If I believe that the Supreme Court violated the Constitution in
ordering the exclusion of public prayers from public schools, where do I
turn?
The Courts? That's not checks and balances because the same branch of
government that I view as violating the Constitution gets to decide whether
or not it violated the Constitution.
The amendment process? That has a huge supermajority requirement,
compounded by the problem that even people who agree with what an amendment
wants to accomplish are often reluctant to tamper with the Constitution.
Impeachment of justices? Even if we would be willing to risk the danger to
the judiciary's independence inherent in such a practice, a minority in
Congress that supports a judge's usurpations of power could protect the
judge from impeachment.
Electing presidents who will appoint Supreme Court justices who will take
different views? That tends to take a long time, and stare decisis tends to
get in the way.
Where are these "plenty of checks and balances" that you speak of? And
would you still feel the way you do if the Supreme Court had three Clarence
Thomases and three Antonin Scalias on it?
.

User: "Bob LeChevalier"
Title: Re: JUDICIAL ACTIVISM, PLEDGE	16 Sep 2005 03:42:13 AM

"Nathan A. Barclay" <nbarclay@hiwaay.net> wrote:

"Bob LeChevalier" <

> wrote in message
news:7skii1hemtckketeuvr4pjqn7d3t38hquq@4ax.com...

Not necessarily. The leadership or direction may come from students or
(especially indirectly) from students' families.

If that happens then there may be another court case. I doubt that it
will happen though.

Further, the fact that the
Pledge is recited in a classroom does not automatically mean that children
are required to participate in that recitation.

Doesn't matter. The teachers are required to teach it, and the
students are put under considerable pressure to participate.

Therefore, prohibiting
recitation of the Pledge goes beyond merely prohibiting government coercion.

No. Government coercion is defined more broadly that the libertoonian
concept of government people pointing guns at you.

But when activist judges
substitute laws and policies of their own choosing for laws and policies
chosen by the people's elected representatives,

Children are not part of government at all. If a group of children wants to
recite the Pledge in a public school classroom, they have the ability to do
so unless action is taken to stop them.

If they are disruptive, then they can be stopped.
But I suspect that the pledge will go the same way as other sorts of
school prayer. Kids who really want to pray will do so on their own
time.

As for teachers, teachers are far more than just an arm of government. They
are citizens in their own right, and they are also entrusted to serve
children and their families. Thus, in the absence of authority from
government, teachers have other sources of authority that they can draw on.

In the classroom, they are government. What they do after school is
up to them.

Therefore, recitation of the Pledge is not something that can take place
only with explicit authorization from government, but rather is something
that may, depending on the teacher, students, and families in a particular
case, take place naturally and organically without government saying
anything one way or the other. It is simply not true that an absence of
authorization is all that it takes to block the action. What it takes to
block the action entirely is an active threat of some kind of civil or
criminal penalty. That requires making law, not just striking down law..

Your argument would apply equally to school prayer. There is no more
reason to believe that the courts, or the bulk of the public, will act
much differently than they did with the school prayer rulings.

Bush vs Gore.

that entire concept falls
apart and the checks and balances built into the system to protect against
abuses of judicial power prove to be totally inadequate.

There are plenty of checks and balances.

Oh? If I believe that the Supreme Court violated the Constitution in
ordering the exclusion of public prayers from public schools, where do I
turn?

Ideally, into a pumpkin.
Since you are not part of the three branches of government, you are
not a significant part of the system of checks and balances. As an
extremist minority, you are irrelevant.

Where are these "plenty of checks and balances" that you speak of? And
would you still feel the way you do if the Supreme Court had three Clarence
Thomases and three Antonin Scalias on it?

Yes. But luckily it won't happen.
lojbab
--
lojbab

Bob LeChevalier, Founder, The Logical Language Group
(Opinions are my own; I do not speak for the organization.)
Artificial language Loglan/Lojban: http://www.lojban.org
.

User: ""
Title: Re: JUDICIAL ACTIVISM, PLEDGE	16 Sep 2005 11:58:07 AM

"Nathan A. Barclay" <nbarclay@hiwaay.net> wrote:

:|
:|"Bob LeChevalier" <lojbab@lojban.org> wrote in message
:|news:7skii1hemtckketeuvr4pjqn7d3t38hquq@4ax.com...
:|
:|> And the judge did not rule that "under God" cannot be said in schools.
:|> He said that the pledge including "under God" cannot be "recited" in
:|> schools. "Recitation" in school is a required response to a teacher's
:|> lead or direction.
:|
:|Not necessarily. The leadership or direction may come from students or
:|(especially indirectly) from students' families. Further, the fact that the
:|Pledge is recited in a classroom does not automatically mean that children
:|are required to participate in that recitation. Therefore, prohibiting
:|recitation of the Pledge goes beyond merely prohibiting government coercion.

So much for the barclayisms
Now for some honest to goodness facts:
FACTS
--------------------------------------------------
(JUNE 28 2002)
9110 NEWDOW v. U.S. CONGRESS
FACTUAL AND PROCEDURAL BACKGROUND
Newdow is an atheist whose daughter attends public elementary
school in the Elk Grove Unified School District
(�EGUSD�) in California. In accordance with state law and a
school district rule, EGUSD teachers begin each school day
by leading their students in a recitation of the Pledge of Allegiance
(�the Pledge�). The California Education Code
requires that public schools begin each school day with �appropriate
patriotic exercises� and that �[t]he giving of the
Pledge of Allegiance to the Flag of the United States of
America shall satisfy� this requirement. Cal. Educ. Code
� 52720 (1989) (hereinafter �California statute�).1 To implement
the California statute, the school district that Newdow�s
daughter attends has promulgated a policy that states, in pertinent
part: �Each elementary school class [shall] recite the
pledge of allegiance to the flag once each day.�2
-----------------------------------------------
1 The relevant portion of California Education Code � 52720 reads:
In every public elementary school each day during the school
year at the beginning of the first regularly scheduled class or
activity period at which the majority of the pupils of the school
normally begin the schoolday, there shall be conducted appropriate
patriotic exercises. The giving of the Pledge of Allegiance to
the Flag of the United States of America shall satisfy the requirements
of this section.
2 The SCUSD, the school district that Newdow claims his daughter may
in the future attend, has promulgated a similar rule: �Each school shall
conduct patriotic exercises daily . . . . The Pledge of Allegiance to the
flag will fulfill this requirement.� However, as discussed infra, Newdow
lacks standing to challenge the SCUSD�s rule requiring recitation of the
Pledge.
9111 NEWDOW v. U.S. CONGRESS
The classmates of Newdow�s daughter in the EGUSD are
led by their teacher in reciting the Pledge codified in federal
law. On June 22, 1942, Congress first codified the Pledge as
�I pledge allegiance to the flag of the United States of America
and to the Republic for which it stands, one Nation indivisible,
with liberty and justice for all.� Pub. L. No. 623, Ch.
435, � 7, 56 Stat. 380 (1942) (codified at 36 U.S.C. � 1972).
On June 14, 1954, Congress amended Section 1972 to add the
words �under God� after the word �Nation.� Pub. L. No. 396,
Ch. 297, 68 Stat. 249 (1954) (�1954 Act�). The Pledge is currently
codified as �I pledge allegiance to the Flag of the
United States of America, and to the Republic for which it
stands, one nation under God, indivisible, with liberty and justice
for all.� 4 U.S.C. � 4 (1998) (Title 36 was revised and
recodified by Pub. L. No. 105-225, � 2(a), 112 Stat. 1494
(1998). Section 172 was abolished, and the Pledge is now
found in Title 4.)
Newdow does not allege that his daughter�s teacher or
school district requires his daughter to participate in reciting
the Pledge.3 Rather, he claims that his daughter is injured
when she is compelled to �watch and listen as her stateemployed
teacher in her state-run school leads her classmates
in a ritual proclaiming that there is a God, and that our�s [sic]
is �one nation under God.� �
Newdow�s complaint in the district court challenged the
constitutionality, under the First Amendment, of the 1954
Act, the California statute, and the school district�s policy
requiring teachers to lead willing students in recitation of the
-------------------------------------------
3 Compelling students to recite the Pledge was held to be a First Amendment
violation in West Virginia State Board of Education v. Barnette, 319
U.S. 624, 642 (1943) (�[T]he action of the local authorities in compelling
the flag salute and pledge transcends constitutional limitations on their
power and invades the sphere of intellect and spirit which it is the
purpose of the First Amendment to our Constitution to reserve from all
official control.�). Barnette was decided before the 1954 Act added the
words �under God� to the Pledge.
http://news.findlaw.com/hdocs/docs/conlaw/newdowus62602opn.pdf
*************************************************************************************
On June 28, 2002 a three judge panel of the 9th Circuit handed down the
ruling in the Newdow. They ruled the following
NEWDOW I (JUNE 28 2002)
[10] In conclusion, we hold that (1) the 1954 Act adding the words
"under God" to the Pledge, and (2) EGUSD's policy and practice of
teacher-led recitation of the Pledge, with the added words included,
violate the Establishment Clause. The judgment of dismissal is vacated with
respect to these two claims, and the cause is remanded for further
proceedings consistent with our holding. Plaintiff is to recover costs on
this appeal.
REVERSED AND REMANDED.
SOURCE OF INFORMATION NEWDOW v. U.S. CONGRESS p. 9131
http://news.findlaw.com/hdocs/docs/conlaw/newdowus62602opn.pdf
That ruling was later amended to the following:
NEWDOW II (FEBRUARY 28, 2003)
[9] In light of Supreme Court precedent, we hold that the school
district's policy and practice of teacher-led recitation of the Pledge,
with the inclusion of the added words "under God," violates
the Establishment Clause. In addition to the relief that Newdow seeks
against the school district�relief to which he is entitled�Newdow seeks a
declaration as to the constitutionality of the 1954 Act. The district court
did not discuss that question because it dismissed Newdow's complaint on
the basis of its holding that the school district's policy did not violate
the First Amendment. Given our contrary holding, we must consider whether
to grant Newdow's claim for declaratory relief as to the Act. Normally,
whether to decide a claim for declaratory judgment is left to the
discretion of the district court. 28 U.S.C. � 2201(a); see also Government
Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1222-23 (9th Cir. 1998). We
doubt that, given the relief to which we decide Newdow is entitled, the
district court would have exercised its discretionary power to resolve, in
the present case, the additional issue as to which Newdow seeks declaratory
relief. Accordingly, we decline to reach that issue here.
[10] The judgment of dismissal is vacated with respect to Newdow's
claim that the school district's Pledge policy violates the Establishment
Clause and the cause is remanded for further proceedings consistent with
our holding. Plaintiff is to recover costs on this appeal.
REVERSED AND REMANDED.
THE NINTH CIRCUIT, NEWDOW v. .U.S. CONGRESS; No. 00-16423 Filed June 26,
2002 Amended February 28, 2003, p 2812
http://www.usdoj.gov/osg/briefs/2002/2pet/7pet/2002-1574.pet.app.pdf
******************************************************************************************
The case was appealed to the USSC by both parties, Newdow also petitioned
the USSC to take the case and the losers appealed to the USSC.
The court took the easy way out by refusing to rule on the merits, instead
they once more tossed Federalism on its ear (remember Bush v Gore) and
rules that Newdow didn't have standing even though the 9th Circuit ruled
based on California law that Newdow did have standing.
The current ruling by the Federal District court is based on the 9th
Circuit ruling. Since the USSC did not rule on the merits, thus did not
overturn the 9th Circuit on the merits of that case this District judge
felt he was bound by that ruling, thus that was the basis of his ruling
*********************************************************************************
This is from Newdow I
================================================
FAILS ENDORSEMENT TEST
-------------------------------------------------------------
The Pledge, as currently codified, is an impermissible government
endorsement of religion because it sends a message to unbelievers "that
they are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members
of the political community." Lynch, 465 U.S. at 688 (O'Connor, J.,
concurring). . . Consequently, the policy and the Act fail the endorsement
test.
NEWDOW v. U.S. CONGRESS, F3d. 597 (9th Cir. 2002) p. 607
=======================================================
FAILS COERCION TEST
------------------------------------------------------------
Similarly, the policy and the Act fail the coercion test.
NEWDOW v. U.S. CONGRESS, F3d. 597 (9th Cir. 2002) p. 608
========================================================
FAILS FIRST PRONG OF THE LEMON TEST
-------------------------------------------------------------
Because the Act fails the purpose prong of Lemon, we need not examine the
other prongs. Lemon, 403 U.S. at 612-14.
NEWDOW v. U.S. CONGRESS, F3d. 597 (9th Cir. 2002) p. 611
====================================================
ACT AND SCHOOL DISTRICT POLICY BOTH FAIL LEMON,
ENDORSEMENT AND COERCION TESTS
-------------------------------------------------------------------------
Similarly, the school district policy also fails the Lemon test.
Although it survives the first prong of Lemon because, as even Newdow
concedes, the school district had the secular purpose of fostering
patriotism in enacting the policy, the policy fails the second prong. . .
Therefore the policy fails the effects prong of Lemon, and fails the Lemon
test. In sum, both the policy and the Act fail the Lemon test as well as
the endorsement and coercion tests.
NEWDOW v. U.S. CONGRESS, F3d. 597 (9th Cir. 2002) P. 611
===================================================
HOLDING
----------------------------------------------------------------------------------
[10] In conclusion, we hold that (1) the 1954 Act adding the words "under
God" to the Pledge, and (2) EGUSD's policy and practice of teacher-led
recitation of the Pledge, with the added words included, violate the
Establishment Clause. The judgment of dismissal is vacated with respect to
these two claims, and the cause is remanded for further proceedings
consistent with our holding. Plaintiff is to recover costs on this appeal.
REVERSED AND REMANDED.
NEWDOW v. U.S. CONGRESS, F3d. 597 (9th Cir. 2002) p. 612
*******************************************************************************
See how easy it is to have discussions when one knows they topic either
doing their homework of being an insider. I qualify in both those
instances in this particular case.. Facts trump Barclayims every time
Here is some addition information you probably won't bother to look over
Complete Litigation History of the Pledge from 2000 to present
http://groups.google.com/group/alt.politics.democrats.d/msg/5e103fe9d193d59e?hl=en&
Here is one legal scholar, a conservative, clerked for Sandra O'Connor,
Lunacy of Pledge Protection Act
Lunacy of only state courts interpreting First Amendment
By Marci A. HamiltonFindLaw Columnist
Special to CNN.com
Thursday, September 23, 2004 Posted: 5:10 PM EDT (2110 GMT)
http://www.cnn.com/2004/LAW/09/23/hamilton.pledge/
The Pennsylvania Mandatory School Pledge of Allegiance Law:
Why A Federal Appeals Court Was Right to Strike It Down
By MARCI HAMILTON
hamilto...@aol.com
Thursday, Aug. 26, 2004
http://writ.news.findlaw.com/hamilton/20040826.html
The Supreme Court Decision on the Pledge of Allegiance Case:
Why It Raises Federalism Issues
By MARCI HAMILTON
hamilto...@aol.com
Thursday, Jun. 17, 2004
http://writ.news.findlaw.com/hamilton/20040617.html
The Court Hears Oral Argument in the "Under God" Pledge of Allegiance Case:
Why the Court Should Reject This Pledge, and Why the Department of Justice
Is Wrong To Support It
By MARCI HAMILTON
hamilto...@aol.com
Thursday, Mar. 25, 2004
http://writ.news.findlaw.com/hamilton/20040325.html
THE ONGOING FIGHT FOR RELIGIOUS DOMINANCE:
From The Secret Service Agent's Slur, To Critiques Of The Ninth Circuit's
Pledge Of Allegiance Decision
By MARCI HAMILTON
hamilto...@aol.com
Thursday, Aug. 01, 2002
http://writ.news.findlaw.com/hamilton/20020801.html
Another interesting thing about the pledge.
Compare the briefs that were filed with the USSC, on both sides, prior to
deadline in Jan/Feb 2004
The numbers are about even, but the quality of argument, points made, valid
legal and historical data and cites provided was heavy in favor of those
supporting Newdow.
The side supporting Newdow included a brief filed by some of the top
historical scholars in the country, a brief filed on behave of 20+ Rabbis,
ministers etc Briefs filed by several religious groups etc
You don't find this among the briefs filed by the side opposing Newdow
You can find URLs for the briefs here
http://pewforum.org/religion-schools/pledge/
Reactions from Advocacy Groups
In support of the Court's decision:
American Center for Law and Justice
Orthodox Union
In opposition to the Court's opinion:
American Atheists
Americans United for the Separation of Church and State
Resources from the Courts
Supreme Court Opinion
Transcript of Oral Arguments
Briefs on the Merits
Petitioner: Elk Grove Unified School District and David W. Gordon (PDF)
United States in Support of Petitioner (PDF)
Respondent: Michael A. Newdow (PDF)
Reply Brief: Elk Grove Unified School District (PDF)
Reply Brief: United States in Support of Petitioner (PDF)
Amicus Briefs in Support of Petitioner
American Jewish Congress (PDF)
American Legion (PDF)
Bipartisan Legal Advisory Group of the U.S. House of Representatives
Catholic League for Religious and Civil Rights and Thomas More Law Center
(PDF)
Center for Individual Freedom (PDF)
Christian Legal Society, et al. (PDF)
Citizens United Foundation (PDF)
Claremont Institute Center for Constitutional Jurisprudence
Common Good Foundation, et al. (PDF)
John Cornyn, Jon Kyl, Lindsey Graham, Larry Craig, Saxby Chambliss, et al.
Dirk Kempthorne, et al. (PDF)
Focus on the Family, Family Research Council and Alliance Defense Fund
(PDF)
George Allen, et al. (PDF)
Grassfire.Net and Hundreds of Thousands of Americans (PDF)
Institute in Basic Life Principles, Faith and Action, et al. (PDF)
Joseph R. Grodin
Liberty Counsel, WallBuilders, and William J. Federer (PDF)
Knights of Columbus (PDF)
National Education Association (PDF)
National Jewish Commission on Law & Public Affairs (PDF)
National Lawyers Association Foundation (PDF)
National School Boards Association (PDF)
Pacific Justice Institute (PDF)
Pacific Research Institute and Pacific Legal Foundation (PDF)
Rutherford Institute (PDF)
Sandra L. Banning (PDF)
Texas, et al. (PDF)
Thurston Greene
United States Senate
Amicus Briefs in Support of Respondent
American Atheists (PDF)
American Humanist Association, et al. (PDF)
Americans United for Separation of Church and State (PDF)
Anti-Defamation League (PDF)
Associate Professor Barbara A. McGraw (PDF)
Associated Pantheist Groups (PDF)
Atheist Law Center (PDF)
Atheists and Other Freethinkers (PDF)
Atheists for Human Rights (PDF)
Buddhist Temples, et al. (PDF)
Christopher L. Eisgruber and Lawrence G. Sager (PDF)
Church of Freethought (PDF)
Council for Secular Humanism (PDF)
Freedom From Religion Foundation, Inc. (PDF)
Historians and Law Scholars (PDF)
Mister Thorne (PDF)
Religious Scholars and Theologians (PDF)
Rev. Dr. Betty Jane Bailey, et al. (PDF)
Rob Sherman Advocacy
Seattle Atheists, et al. (PDF)
United Fathers of America, et al. (PDF)
Cert Briefs
Petition for a Writ of Certiorari: Elk Grove School District (PDF)
Petition for a Writ of Certiorari: Solicitor General (PDF)
Petition for a Writ of Certiorari: Michael A. Newdow (PDF)
Brief in Opposition: Michael A. Newdow (PDF)
Reply Brief: Elk Grove School District (PDF)
Reply Brief: Solicitor General (PDF)
[snipped the usual barclayisms that have no basis in fact of this case but
are only more of his usual biased, unqualified, agenda driven ideological
barclayism propaganda
***************************************************************
Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS � Hampton Roads SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE

http://members.tripod.com/~candst/index.html
****************************************************************
.

User: "Matt Silberstein"
Title: Re: JUDICIAL ACTIVISM, PLEDGE	15 Sep 2005 08:24:52 PM

On Thu, 15 Sep 2005 14:28:52 -0500, in alt.atheism , "Nathan A.
Barclay" <nbarclay@hiwaay.net> in <11ijirmdat4l005@corp.supernews.com>
wrote:

"Bob LeChevalier" <lojbab@lojban.org> wrote in message
news:7skii1hemtckketeuvr4pjqn7d3t38hquq@4ax.com...

Not necessarily. The leadership or direction may come from students or
(especially indirectly) from students' families.

Students are allowed to pray in the schools, families in general are
not allowed to disrupt the schools.

Further, the fact that the
Pledge is recited in a classroom does not automatically mean that children
are required to participate in that recitation. Therefore, prohibiting
recitation of the Pledge goes beyond merely prohibiting government coercion.

Sorry, but the schools set aside time to recite, they spend time
teaching the pledge, etc. To see this as other than government action
amazes me. What if the same thing were done re Satanism? Would that be
ok?

But when activist judges
substitute laws and policies of their own choosing for laws and policies
chosen by the people's elected representatives,

Children are not part of government at all.

Teacher are.

If a group of children wants to
recite the Pledge in a public school classroom, they have the ability to do
so unless action is taken to stop them.

As long as they are otherwise allowed to talk it is acceptable.
Students can get up at any time and say whatever they want. But as
long as other speech were allowed this would be allowed.

If government cannot act without
the authorization of law, then it follows that government cannot act to stop
the children from doing so.

Did you read the decision or just the headline?

As for teachers, teachers are far more than just an arm of government. They
are citizens in their own right, and they are also entrusted to serve
children and their families.

That "entrust" comes from their government authority. They are agents
of the government and so are limited in what they can do.

Thus, in the absence of authority from
government, teachers have other sources of authority that they can draw on.

Not as public school teachers in this context.

The general rule is not that teachers are allowed to do only what government
explicitly says they can, but rather is that teachers have broad discretion
as long as government does not overrule what they want to do in their
classrooms.

The government is prohibited from promoting a religious position. As
such all agents of the government are so prohibited. So the teachers
are prohibited. The teacher do not have the right to take time out of
the school day to promote a religious view they have. Again, would you
have the same view if they were promoting Satanism? Teacher in the
U.S. have been fired for belonging to non-standard religions, I doubt
they can promote them. Promoting the standard religion is not
acceptable.
[snip]

Where in the decision did the court restrict the students? You are
making judgments based on a headline.
[snip]

It is not activist for a judge to say, "This law is deliberately designed to
give Group A a clearly unfair advantage at the expense of Group B, and
therefore violates the equal protection of the laws."

Promoting some religious views over others gives advantages to some
groups over others.
[snip]

The problem with activist judges is that they seek not just to block
unconstitutional laws but to impose their own "solutions" to society's
problems in the place of existing law. Activist judges did not stop at
saying, "You can't have deliberate segregation," but ordered specific
solutions regarding how to make schools more racially mixed - solutions that
forced a significant burden onto children in the form of greater travel
times from court-ordered bussing.

Because the legislatures had consistently refused to present an
acceptable plan on their own to deal with the problem.
[snip]

Similarly, the expulsion of public prayers from public schools went far
beyond merely prohibiting states from acting. For the activist judges to
make their "solution" work, they had to threaten school systems with
punishment if they did not deliberately, actively prevent public prayers
from taking place in their classrooms.

They prevent *school* led prayer. And giving the microphone to a
student to lead a prayer is still school led.
[snip]
--
Matt Silberstein
Do something today about the Darfur Genocide
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.

User: "Dana"
Title: Re: JUDICIAL ACTIVISM, PLEDGE	16 Sep 2005 01:24:22 AM

"Matt Silberstein" <RemoveThisPrefixmatts2nospam@ix.netcom.com> wrote in
message news:cklji1taeddmtm1rf707s981nbds5eflqu@4ax.com...

On Thu, 15 Sep 2005 14:28:52 -0500, in alt.atheism , "Nathan A.
Barclay" <nbarclay@hiwaay.net> in <11ijirmdat4l005@corp.supernews.com>
wrote:

"Bob LeChevalier" <lojbab@lojban.org> wrote in message
news:7skii1hemtckketeuvr4pjqn7d3t38hquq@4ax.com...

children

are required to participate in that recitation. Therefore, prohibiting
recitation of the Pledge goes beyond merely prohibiting government

coercion.

Sorry, but the schools set aside time to recite,

And no one is forced to recite the pledge.

they spend time
teaching the pledge, etc.

Teaching the pledge is simply a lesson in civics, nothing else.

But when activist judges
substitute laws and policies of their own choosing for laws and

policies

chosen by the people's elected representatives,

Children are not part of government at all.

Teacher are.

So when are you going to harp on the teachers for preaching the belief that
homosexuality is normal.

If a group of children wants to
recite the Pledge in a public school classroom, they have the ability to

so unless action is taken to stop them.
If government cannot act without
the authorization of law, then it follows that government cannot act to

stop

the children from doing so.
As for teachers, teachers are far more than just an arm of government.

They

are citizens in their own right, and they are also entrusted to serve
children and their families.

That "entrust" comes from their government authority.

No, it comes from society.

Thus, in the absence of authority from
government, teachers have other sources of authority that they can draw

on.

The general rule is not that teachers are allowed to do only what

government

explicitly says they can, but rather is that teachers have broad

discretion

as long as government does not overrule what they want to do in their
classrooms.

The government is prohibited from promoting a religious position.

And the government is not promoting a religious position.
The government is not mandating a federal religion that all people must
observe.

There is a huge difference between constraining government and using
government power to constrain the actions of teachers and students. If

all

the judge did was strike down a legal requirement that classrooms include

version of the Pledge that includes "under God," I'm inclined to regard

that

action as something entirely appropriate that protects freedom. But if

the

judge went farther and limited the actions of teachers and students, not
just the actions of government, then the judge unconstitutionally usurped
legislative authority and unilaterally took rights away from some people

for

the benefit of others.

It is not activist for a judge to say, "This law is deliberately designed

give Group A a clearly unfair advantage at the expense of Group B, and
therefore violates the equal protection of the laws."

Promoting some religious views over others gives advantages to some
groups over others.

A religious view is not being promoted via the pledge.