| Topic: |
Sociology > Education |
| User: |
"" |
| Date: |
02 Nov 2005 03:43:32 PM |
| Object: |
A HISTORIC EXAMPLE OF JUDICIAL ACTIVISM: THE CANTWELL CASE |
A HISTORIC EXAMPLE OF JUDICIAL ACTIVISM: THE CANTWELL CASE
This from a conservative newsgroup
Theocracy in action
http://www.michnews.com/artman/publish/article_10139.shtml
[excerpt]
Guest Commentary
A HISTORIC EXAMPLE OF JUDICIAL ACTIVISM: THE CANTWELL CASE
By David W. New, Esq.
MichNews.com
Nov 2, 2005
The problem of judicial activism is on the national radar scope more
today than ever before. Americans know that something is wrong when
activist judges rule that "under God" in the Pledge of Allegiance is
unconstitutional. Many people who were not sure if judicial activism
was a problem changed their minds when the Massachusetts Supreme
Courtbuckeyeelo
ruled that homosexuals have a right to marry. How can a constitution
written in 1780 by John Adams suddenly protect gay marriage? The
American Bar Association just released a poll which suggested that
more than half of all Americans believe that judicial activism is a
serious problem today. Note 1.
Most people think that judicial activism is something new. However, a
check with the history books would suggest that it has been with us
since the 1940's if not earlier. In my opinion, the most important
example of judicial activism in American history occurred on May 20,
1940. On this date, the U.S. Supreme Court issued its infamous
Cantwell v. Connecticut decision. Note 2. Surprisingly, very few
Americans know anything at all about this case. However, the Cantwell
decision has affected your life in a very big way. If religious
freedom is important to you then you should learn as much as possible
about this case. Cantwell is probably the most important religion case
in American history. In fact, it could be argued that it is more
important than the First Amendment!
In this article, I propose to explain why the Cantwell decision is in
a sense more important than the First Amendment. I will also explain
the basic facts of the Cantwell case and how it affected religion law
in the United States. In a nutshell, the U.S. Supreme Court illegally
seized control of religious freedom in the United States through the
Cantwell decision. As a result of this case, the Supreme Court began a
new career as the final arbiter of the separation of church and state
in America. Thus, the Cantwell decision was a turning point in
American history.
THE BASIC FACTS OF THE CANTWELL CASE
[snip]
RELIGIOUS FREEDOM BEFORE CANTWELL
[snip]
RELIGIOUS FREEDOM AFTER CANTWELL
[snip]
WHY IS THE CANTWELL DECISION MORE IMPORTANT
THAN THE FIRST AMENDMENT?
[snip]
HOW CANTWELL AFFECTED THE PUBLIC SCHOOLS
[snip]
HOW CANTWELL AFFECTED THE TEN COMMANDMENTS
[snip]
JUDICIAL ACTIVISM IN CANTWELL
[snip]
For an insightful history of religious freedom in America, read my
book "Religious Freedom in America for Beginners." Visit
http://www.religiousfreedom.us for ordering information.
*****************************************************************
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 [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the U.S. and a couple from overseas as well]
***************************************************************
.. . . 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
****************************************************************
.
|
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| User: "fred" |
|
| Title: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
02 Nov 2005 11:22:14 PM |
|
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wrote:
A HISTORIC EXAMPLE OF JUDICIAL ACTIVISM: THE CANTWELL CASE
This from a conservative newsgroup
Theocracy in action
http://www.michnews.com/artman/publish/article_10139.shtml
[excerpt]
Guest Commentary
A HISTORIC EXAMPLE OF JUDICIAL ACTIVISM: THE CANTWELL CASE
By David W. New, Esq.
MichNews.com
Nov 2, 2005
The problem of judicial activism is on the national radar scope more
today than ever before. Americans know that something is wrong when
activist judges rule that "under God" in the Pledge of Allegiance is
unconstitutional. Many people who were not sure if judicial activism
was a problem changed their minds when the Massachusetts Supreme
Courtbuckeyeelo
ruled that homosexuals have a right to marry. How can a constitution
written in 1780 by John Adams suddenly protect gay marriage? The
American Bar Association just released a poll which suggested that
more than half of all Americans believe that judicial activism is a
serious problem today. Note 1.
Most people think that judicial activism is something new. However, a
check with the history books would suggest that it has been with us
since the 1940's if not earlier. In my opinion, the most important
example of judicial activism in American history occurred on May 20,
1940. On this date, the U.S. Supreme Court issued its infamous
Cantwell v. Connecticut decision. Note 2. Surprisingly, very few
Americans know anything at all about this case. However, the Cantwell
decision has affected your life in a very big way. If religious
freedom is important to you then you should learn as much as possible
about this case. Cantwell is probably the most important religion case
in American history. In fact, it could be argued that it is more
important than the First Amendment!
In this article, I propose to explain why the Cantwell decision is in
a sense more important than the First Amendment. I will also explain
the basic facts of the Cantwell case and how it affected religion law
in the United States. In a nutshell, the U.S. Supreme Court illegally
seized control of religious freedom in the United States through the
Cantwell decision. As a result of this case, the Supreme Court began a
new career as the final arbiter of the separation of church and state
in America. Thus, the Cantwell decision was a turning point in
American history.
THE BASIC FACTS OF THE CANTWELL CASE
[snip]
RELIGIOUS FREEDOM BEFORE CANTWELL
[snip]
RELIGIOUS FREEDOM AFTER CANTWELL
[snip]
WHY IS THE CANTWELL DECISION MORE IMPORTANT
THAN THE FIRST AMENDMENT?
[snip]
HOW CANTWELL AFFECTED THE PUBLIC SCHOOLS
[snip]
HOW CANTWELL AFFECTED THE TEN COMMANDMENTS
[snip]
JUDICIAL ACTIVISM IN CANTWELL
[snip]
For an insightful history of religious freedom in America, read my
book "Religious Freedom in America for Beginners." Visit
http://www.religiousfreedom.us for ordering information.
With respect to a confused, possibly corrupt Supreme Court, note that
MAJOR discrepancies have now surfaced in church-state separation
opinions.
At least two Court opinions attempt to portray the Court's inclusion of
the States in the establishment clause as a genuine reflection of the
intensions of the Founding Fathers. These opinions did this by
emphasizing (possibly cherry-picking) Jefferson's "wall of separation"
writing and other period writings. These opinions are the Everson and
Reynolds opinions.
The problem with using Jefferson's coat tails to justify absolute
church-state separation, however, is that Jefferson, Mr. "wall of
separation" himself, had also reflected that the Founding Fathers had
finally decided against absolute church-state separation as evidenced
by the following extract:
"Our citizens have wisely formed themselves into one nation as to
others and several States as among themselves. To the united nation
belong our external and mutual relations; to each State, severally, the
care of our persons, our property, our reputation and religious
freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262
The problem shadowing the reasonable ramifications of the above extract
is that Jefferson's Danbury letter is probably the most common example
used to justify the Court's modern interpretation of the scope of the
1st Amendment. The activist Court, and the liberal media for that
matter, are letting everybody think that the 1st Amendment's
prohibitions on the federal government was also originally meant to
include the State governments. With this in mind, if you are still
reluctant to accept that Jefferson was reflecting that the States had
the power to legislate religion in the extract above, then maybe you'll
believe it when you hear it from the Supreme Court itself...
The Supreme Court slipped up with respect to inadvertently
complementing the ramifications of Jefferson's Rhode Island extract by
confirming that the States do have the power to legislate religion.
In particular, the Court dropped the ball in the Cantwell opinion,
regarded by some as a major example of legislation from the bench. The
Cantwell opinion reasonably indicates that the 1st Amendment's
prohibitions on certain federal powers didn't include the States until
the 14th Amendment was made:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws."
This gaffe in the Cantwell opinion clues us about the Supreme Court's
dirty little secret that the Founding Father's had indeed delegated
power to the State governments to legislate religion; this is evidenced
by the 1st and 10th Amendments. But this is contrary to what we are
literally teaching our children today with respect to the fact that
Jefferson's Danbury letter practically stands alone with respect to any
official evidence of the so-called constitutional principal of absolute
church-state separation. Taking into consideration that the Cantwell
opinion also unsurprisingly fails the 10th Amendment test, the bottom
line is that Americans have been brainwashed by activist judges via the
liberal media to accept, even if reluctantly, that absolute
church-state separation is what the Founding Fathers had decided when
the Bill of Rights was ratified.
I will also point out that corrupt, activist Justices had evidently
failed to get together to corroborate their bluffs concerning the
establishment clause and the 14th Amendment. For example, whereas the
Cantwell opinion was bold with respect to it's sleight-of-hand claim
that the 14th Amendment passed the 1st Amendment's prohibitions on
federal government powers to the States, the Everson opinion erred by
asserting that such prohibitions on State power are inherent in the
establishment clause itself; the Everson Justices forced things into
the establishment clause that are obviously not there. Their
subjective interpretation of the establishment clause is evidenced by
noting that the Everson opinion includes Jefferson's "wall of
separation" words in the same paragraph that includes the Court's "new
and improved" - but unconstitutional - interpretation of the
establishment clause. The Justices presumably referenced Jefferson
famous words to help justify their "insight" into the establishment
clause. But the folly of the Everson opinion doesn't stop here.
Note that the outcome-driven Supreme Court really screwed up with the
Everson opinion by unthinkingly referencing uncomplimentary timelines
from both the Reynolds and Cantwell opinions. This happened because
the Everson Justices unwittingly emphasized both Jefferson's writings
and the 14th Amendment, probably as a consequence of their overzealous
(nervous?) attempt to remove any doubt from our minds as to the
integrity of their bogus interpretation of the establishment clause.
The problem is that the timelines reflected by Jefferson's writings and
the 14th Amendment in no way complement each other. More specifically,
the Court's excuse that the States never had the power to legislate
religion to begin with greatly contradicts that Courts excuse that the
State's lost their power to legislate religion when the 14th Amendment
was made, a glaring timeline discrepancy of roughly 77 years! Again,
both these timelines are given credibility in the Everson opinion! (So
even crooked Supreme Court Justices don't seem to be able to get their
fabrications to agree.)
The bottom line is that the People will know that the Supreme Court has
ignored the intentions of the Founding Fathers concerning our religious
freedoms. The People will know that that the Founding Fathers had
delegated government power to the States to legislate religion by means
of the 1st and 10th Amendments.
*****************************************************************
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 =B7 Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the U.S. and a couple from overseas as well]
***************************************************************
. . . 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. Eisne=
r,
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
****************************************************************
.
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| User: "fred" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
03 Nov 2005 12:20:35 PM |
|
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wrote:
On 2 Nov 2005 21:22:14 -0800, "fred" <clarma1@gmail.com> wrote:
With respect to a confused, possibly corrupt Supreme Court, note that
MAJOR discrepancies have now surfaced in church-state separation
opinions.
The ONLY evidence you've ever presented that the USSC is "confused"
and/or "Corrupt" is YOUR belief
At least two Court opinions attempt to portray the Court's inclusion of
the States in the establishment clause as a genuine reflection of the
intensions of the Founding Fathers.
A "genuine reflection of the founding fathers" isn't legally binding,
Fredloon
I never said that the intentions of the Founding Fathers was legally
binding.
The problem with using Jefferson's coat tails to justify absolute
church-state separation, however, is that Jefferson, Mr. "wall of
separation" himself, had also reflected that the Founding Fathers had
finally decided against absolute church-state separation as evidenced
by the following extract:
"extracts", "writings", "Letters" etal, are NOT legally binding
documents, FRED
You're sidestepping the point that the outcome-driven Court has
possibly misrepresented Jefferson.
.
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| User: "" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
03 Nov 2005 04:33:51 PM |
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On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
The problem with using Jefferson's coat tails to justify absolute
church-state separation, however, is that Jefferson, Mr. "wall of
separation" himself, had also reflected that the Founding Fathers had
finally decided against absolute church-state separation as evidenced
by the following extract:
"extracts", "writings", "Letters" etal, are NOT legally binding
documents, FRED
You're sidestepping the point that the outcome-driven Court has
possibly misrepresented Jefferson.
You wouldn't know what an "outcome driven court" is if it hit you in
the head, Freddie
Jefferson being "misrepresented" isn't relevant to anything
Whatever the "wall" means is because the USSC has determined it is
doctrine. It is a blessed doctrine that has kept both religion and
government from intermingling. That is good.
When it DID "mingle", you fool, we had Blacks being drug out of
courthouses and Jails all under copies of the "10 commandments"
The tons of foolisness you cobble together is by now almost comical
It isn't in the realm of debatable issues.
.
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| User: "fred" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
03 Nov 2005 07:31:03 PM |
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wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
The problem with using Jefferson's coat tails to justify absolute
church-state separation, however, is that Jefferson, Mr. "wall of
separation" himself, had also reflected that the Founding Fathers had
finally decided against absolute church-state separation as evidenced
by the following extract:
"extracts", "writings", "Letters" etal, are NOT legally binding
documents, FRED
Again, activist Judges and the liberal media are the ones who are
wrongly giving the impression that documents other than the
Constitution are legally binding by using Jefferson's Danbury letter to
justify their bogus intepretation of the establishment clause.
You're sidestepping the point that the outcome-driven Court has
possibly misrepresented Jefferson.
You wouldn't know what an "outcome driven court" is if it hit you in
the head, Freddie
Jefferson being "misrepresented" isn't relevant to anything
Jefferson is relevant to exposing corruption in the Supreme Court.
Whatever the "wall" means is because the USSC has determined it is
doctrine. It is a blessed doctrine that has kept both religion and
government from intermingling. That is good.
There's that word "doctrine" again. That's the same word that some
Christian denominations use to justify their specific religious
beliefs. Regardless that you evidently don't like what the
Constitution says, you are reminded that we have a constitutional form
of government:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
Also, from the Slaughterhouse opinion:
"This court has no authority to interpolate a limitation that is
neither expressed nor implied. Our duty is to execute the law, not to
make it." -- Slaughterhouse Cases 1872
When it DID "mingle", you fool, we had Blacks being drug out of
courthouses and Jails all under copies of the "10 commandments"
The 14th Amendment was intended to address such problems. However,
activist Justices have twisted the meaning of the 14th Amendment as an
excuse to unconstitutionally prohibit religious expression.
The tons of foolisness you cobble together is by now almost comical
Your ad hominem remarks are no surprise.
It isn't in the realm of debatable issues.
.
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| User: "" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 05:55:57 PM |
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On 3 Nov 2005 17:31:03 -0800, "fred" <clarma1@gmail.com> wrote:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause.
You're ignoring the FACT that the USSC would interpret a "wall"
whether or not Jefferson wrote, or said anything, whether or not a
mouldering "founder" wrote or said anything.
It didn't take a ***** "founder" to figure out that "separate but
equal is inherently unequal". A Court of Judges did.
It was presented an issue (a case) and interpreted the constitution as
such.
If "Jefferson would have said" something in a letter pertaining to
black education---that's all the better.
No one "said" anything prior to Brown v Board---but if Jefferson HAD
made some innocuous statement to the fact that it was bad that Blacks
weren't treated equal---that would have made it easier for Marshall to
complile his legal theory.
The idea of "Strict interpretation" has NEVER been doctrine
The idea of idiots now trying to establish "strict construction" as
policy is stupid
And YOU, arguing that you "hate doctrine", are doing nothing but
supporting the establishment of a DOCTRINE that narrowly interprets
the constitution.
.
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| User: "Gray Shockley" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 11:31:22 PM |
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On Fri, 4 Nov 2005 17:55:57 -0600, wrote:
On 3 Nov 2005 17:31:03 -0800, "fred" <clarma1@gmail.com> wrote:
wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause.
You're ignoring the FACT that the USSC would interpret a "wall"
whether or not Jefferson wrote, or said anything, whether or not a
mouldering "founder" wrote or said anything.
It didn't take a ***** "founder" to figure out that "separate but
equal is inherently unequal". A Court of Judges did.
It was presented an issue (a case) and interpreted the constitution as
such.
If "Jefferson would have said" something in a letter pertaining to
black education---that's all the better.
This is fairly close:
---------------------------------------
the proprietors of slaves, a very small proportion are ever seen to
labor. And can the liberties of a nation be thought secure, when we
have removed their only firm basis, a conviction in the minds of
the people that these liberties are of the gift of God? That they
are not to be violated but with his wrath? Indeed I tremble for my
country when I reflect that God is just: that his justice can not
sleep forever: that considering numbers, nature and natural means
only, a revolution of the wheel of fortune, an exchange of
situation is among possible events: that it may become probable by
supernatural interference!
The Almighty has no attributes which can take side with us in such
a contest. But it is impossible to be temperate and to pursue this
subject through the various considerations of policy, of morals, of
history natural and civil. We must be contented to hope they will
force their way into every one's mind. I think a change already
perceptible, since the origin of the present revolution. The spirit
of the master is abating, that of the slave rising from the dust,
his condition mollifying, the way, I hope, preparing, under the
auspices of heaven, for a total emancipation; and that this is
disposed, in the order of events, to be with the consent of the
masters, rather than by their extirpation
<http://www.blackstate.com/jefferson.html>
No one "said" anything prior to Brown v Board---but if Jefferson HAD
made some innocuous statement to the fact that it was bad that Blacks
weren't treated equal---that would have made it easier for Marshall to
complile his legal theory.
The idea of "Strict interpretation" has NEVER been doctrine
The idea of idiots now trying to establish "strict construction" as
policy is stupid
Not "stupid" so much as "clever".
It appears that DeadHeadFred believes everything that Lush Rimshot
tells "it" what to believe.
It seems that DeadFishFred's problem is not that "he" can't think
rationally, it's more likely to believe that "he" can't think at
all.
It appears that Teddy Kennedy has about two years of
active duty U S Military and that TotalWackedFred has about two
years less.
And YOU, arguing that you "hate doctrine", are doing nothing but
supporting the establishment of a DOCTRINE that narrowly interprets
the constitution.
++ gray
.
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| User: "David Jensen" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
03 Nov 2005 07:43:35 PM |
|
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On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
.
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| User: "Mickey" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10thAmendment test! |
03 Nov 2005 09:58:12 PM |
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David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
Can I try? How about by not creating new precedent when existing
precedent is applicable and by avoiding the creation of overly broad
precedent? Activism is, of course, somewhat in the eye of the beholder.
Were I a judge and wished not to be seen as activist, I would probably
avoid making too many rulings that found support only in the penumbrae.
.
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| User: "" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 09:02:28 AM |
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On Fri, 04 Nov 2005 03:58:12 GMT, Mickey
<mickey_and_edith@nomorephishsbcglobal.net> wrote:
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
Can I try? How about by not creating new precedent when existing
precedent is applicable and by avoiding the creation of overly broad
precedent?
Oh, you mean like the courts NOT deciding that "separate but equal"
was "inherently unequal", or: That due process of citizens is only
applicable in federal cases?
.
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| User: "Mickey" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10thAmendment test! |
04 Nov 2005 10:55:54 AM |
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wrote:
On Fri, 04 Nov 2005 03:58:12 GMT, Mickey
<mickey_and_edith@nomorephishsbcglobal.net> wrote:
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
Can I try? How about by not creating new precedent when existing
precedent is applicable and by avoiding the creation of overly broad
precedent?
Oh, you mean like the courts NOT deciding that "separate but equal"
was "inherently unequal", or: That due process of citizens is only
applicable in federal cases?
Come on get, real. While you're at it, you might review Chief Justice
Roberts' commentary on Plessy v Ferg. and Brown v Board of Ed given
during his testimony in front of the Sen. Jud. Committee. I'll give you
a hint: the logic in Plessy is tortured and the argument in Brown is
elegant.
Mickey
.
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| User: "David Jensen" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
03 Nov 2005 11:15:28 PM |
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|
On Fri, 04 Nov 2005 03:58:12 GMT, in alt.atheism
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote in
<o%Aaf.9345$D13.1688@newssvr11.news.prodigy.com>:
David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
Can I try? How about by not creating new precedent when existing
precedent is applicable and by avoiding the creation of overly broad
precedent? Activism is, of course, somewhat in the eye of the beholder.
Were I a judge and wished not to be seen as activist, I would probably
avoid making too many rulings that found support only in the penumbrae.
The Common Law is inherently activist. That is the nature of the
process.
There is no possible way for any court to create an overly broad
precedent. That, too, is in the nature of the system. It is the courts
that follow the precedents that decide what the appropriate and thus
controlling precedents there are.
The penumbra are common law doctrines that often existed long before the
Constitution was agreed to. These common law rights were the reason that
many were opposed to an explicit Bill of Rights, they feared that any
enumeration would slowly be redefined as the only rights that people
had.
Finally, by almost any reasonable criteria, two of the most activist
justices on the US Supreme Court in recent history have been Scalia and
Thomas.
.
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| User: "Mickey" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10thAmendment test! |
04 Nov 2005 10:57:22 AM |
|
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David Jensen wrote:
On Fri, 04 Nov 2005 03:58:12 GMT, in alt.atheism
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote in
<o%Aaf.9345$D13.1688@newssvr11.news.prodigy.com>:
David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
Can I try? How about by not creating new precedent when existing
precedent is applicable and by avoiding the creation of overly broad
precedent? Activism is, of course, somewhat in the eye of the beholder.
Were I a judge and wished not to be seen as activist, I would probably
avoid making too many rulings that found support only in the penumbrae.
The Common Law is inherently activist. That is the nature of the
process.
There is no possible way for any court to create an overly broad
precedent. That, too, is in the nature of the system. It is the courts
that follow the precedents that decide what the appropriate and thus
controlling precedents there are.
This is really a distinction without difference relative to the question
you asked. When applying a precedent in an overly broad manner, in
effect, one creates an overly broad precedent, particularly when other
bozo of the bench with similar bends apply the new precedent frequently
and "vigorously."
I'm not going to argue whether Common Law systems are inherently
activist, that seems a fairly valid observation or stance. I would
merely point out that within such a system there is unavoidable activism
and egregious activism. A judge whose ruling cleave close to existing
precedent, could avoid the moniker activist, whereas a judge who reads
precedent broadly could be called activist. The former judge creates
small footprints on the law, leaving the job of creating huge boot marks
to the legislature or, in former times, the monarch or oligarch.
The penumbra are common law doctrines that often existed long before the
Constitution was agreed to. These common law rights were the reason that
many were opposed to an explicit Bill of Rights, they feared that any
enumeration would slowly be redefined as the only rights that people
had.
I would agree whole-heartedly with your last sentence and would add,
that could they see how things have gone in the last half century, their
fear might also extend to the bill of rights being used as a lever to
pry apart the document to which it was appended.
Penumbra (plural penumbrae or penumbras) is the shadow to be found
beneath any piece of law (code, statute, amendment, right, etc.)
wherein MAY dwell some implied or assumed piece of law. The term is also
derogatorily used to describe the invention of judges and lawyers when
no support can be found in the written law or precedent. Some penumbral
law (powers, rights, etc), from its very sensibleness and long usage has
acquired legitimacy equal to or surpassing written law. Some of it,
however, is just B.S. cooked up to support an unsupportable conclusion.
So I still maintain a judge wishing to preserve a reputation for being
non-acttivist would be careful about how often he or she relied on
penumbral law for principal support.
Finally, by almost any reasonable criteria, two of the most activist
justices on the US Supreme Court in recent history have been Scalia and
Thomas.
You know, this smear is tossed around an awful lot at judges on both
sides. How about a few citations. In particular, I would be curious how
a justice whose reputation rests in large part on his dissents can be
called activist. Doesn't being in the dissent kind of limit one's
ability to be active.
.
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| User: "David Jensen" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 12:12:27 PM |
|
|
On Fri, 04 Nov 2005 16:57:22 GMT, in alt.atheism
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote in
<SpMaf.9746$q%.8805@newssvr12.news.prodigy.com>:
David Jensen wrote:
On Fri, 04 Nov 2005 03:58:12 GMT, in alt.atheism
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote in
<o%Aaf.9345$D13.1688@newssvr11.news.prodigy.com>:
David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
Can I try? How about by not creating new precedent when existing
precedent is applicable and by avoiding the creation of overly broad
precedent? Activism is, of course, somewhat in the eye of the beholder.
Were I a judge and wished not to be seen as activist, I would probably
avoid making too many rulings that found support only in the penumbrae.
The Common Law is inherently activist. That is the nature of the
process.
There is no possible way for any court to create an overly broad
precedent. That, too, is in the nature of the system. It is the courts
that follow the precedents that decide what the appropriate and thus
controlling precedents there are.
This is really a distinction without difference relative to the question
you asked. When applying a precedent in an overly broad manner, in
effect, one creates an overly broad precedent, particularly when other
bozo of the bench with similar bends apply the new precedent frequently
and "vigorously."
But that isn't true. Courts who are following precedent look at the case
that the decision had been applied to and decide for themselves if this
case applies to their circumstances. It's not possible to have an overly
broad precedent.
I'm not going to argue whether Common Law systems are inherently
activist, that seems a fairly valid observation or stance. I would
merely point out that within such a system there is unavoidable activism
and egregious activism. A judge whose ruling cleave close to existing
precedent, could avoid the moniker activist, whereas a judge who reads
precedent broadly could be called activist. The former judge creates
small footprints on the law, leaving the job of creating huge boot marks
to the legislature or, in former times, the monarch or oligarch.
The footprints in the law have to do with the cases being given to them.
Well-reasoned and effective decisions loom large because other courts
are willing to look to that reasoning by analogy. Poorly reasoned cases
end up being small islands, ignored for all but the most apposite cases.
The penumbra are common law doctrines that often existed long before the
Constitution was agreed to. These common law rights were the reason that
many were opposed to an explicit Bill of Rights, they feared that any
enumeration would slowly be redefined as the only rights that people
had.
I would agree whole-heartedly with your last sentence and would add,
that could they see how things have gone in the last half century, their
fear might also extend to the bill of rights being used as a lever to
pry apart the document to which it was appended.
How is that? What specifics do you have in mind? Civil rights?
Penumbra (plural penumbrae or penumbras) is the shadow to be found
beneath any piece of law (code, statute, amendment, right, etc.)
wherein MAY dwell some implied or assumed piece of law. The term is also
derogatorily used to describe the invention of judges and lawyers when
no support can be found in the written law or precedent. Some penumbral
law (powers, rights, etc), from its very sensibleness and long usage has
acquired legitimacy equal to or surpassing written law. Some of it,
however, is just B.S. cooked up to support an unsupportable conclusion.
So I still maintain a judge wishing to preserve a reputation for being
non-acttivist would be careful about how often he or she relied on
penumbral law for principal support.
Privacy has a long history in the Common Law, much longer than our
Constitution.
Finally, by almost any reasonable criteria, two of the most activist
justices on the US Supreme Court in recent history have been Scalia and
Thomas.
You know, this smear is tossed around an awful lot at judges on both
sides. How about a few citations. In particular, I would be curious how
a justice whose reputation rests in large part on his dissents can be
called activist. Doesn't being in the dissent kind of limit one's
ability to be active.
Define what activist means to you.
The person who gathered the info that I referred to (since I think
activist is relatively meaningless in the Common Law tradition, I hardly
would consider it a smear) was effectively defining it to mean any vote
to overturn a law or part of a law as unconstitutional.
.
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| User: "Mickey" |
|
| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10thAmendment test! |
04 Nov 2005 01:45:46 PM |
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Define what activist means to you.
In the context of our judicial system, I would define an activist judge
as one whose decisions intentionally usurp any power or powers the
constitution (or other governing document) grants to the other branches
of government (i.e., the legislative and executive) which those branches
have not specifically assigned to the judiciary either temporarily or
permanently. I would also apply the label to an appellate judge (or
panel of judges) who egregiously and or consistently shows insufficient
deference to findings of fact by trial courts. (At the appellate and
SCOTUS levels I would remove the intent test in the first part of my
definition, assuming that judges of this accomplishment would not
abnegate nor side-step their oaths in total ignorance. It does seem
appropriate to cut low level judges some slack on the fine points of
constitutional law, so their level of abuse must rise higher to warrant
my personal censure.) I do not consider the judge's motives an excuse.
You might assume correctly that I would also apply a similar label
(over-stepping) to members of the executive branch (e.g., for the abuse
of executive orders) or to a legislature when it attempts to usurp
powers granted to either the executive or the judiciary (e.g., the Terri
Schivo business).
I believe the furor over "activist judges" stems in large measure from
the pernicious and persistent effects of judicial activism, and the
limited means available for redress, particularly when the activism is
in SCOTUS, where the amendment process, slow as it is, is likely the
most rapid remedy. (I add "most rapid," because SCOTUS seems typically
loath to revisit an issue while members of the original majority still
serve.)
I would just point out that while our judicial system owes much to
common law, we do not live under a pure common law system. So, my
definition of activist under a pure common law system would tend toward
"false judge" or "dishonest judge," whereas my definition under our
system would tend toward "ignorant judge" or "intellectually dishonest
judge." I will avoid the label of "evil judge," since that requires a
weighing of a judge's conscience, which outside of a court room, is
probably not proper nor conducive to polite discourse.
.
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| User: "Gray Shockley" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 04:55:56 PM |
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|
On Fri, 4 Nov 2005 12:12:27 -0600, David Jensen wrote:
Define what activist means to you.
The person who gathered the info that I referred to (since I think
activist is relatively meaningless in the Common Law tradition, I hardly
would consider it a smear) was effectively defining it to mean any vote
to overturn a law or part of a law as unconstitutional.
"Common Law" goes out the window
when statutes come through the door.
I can remember in the 1960's when the state [Mississippi]
legislature passed a law making invalid any common law married
couples from that date on. (I imagine you can understand why.]
Could you, please, give some examples of the "Common Law" being
invoked in the last ten or twenty years?
I'm totally sincere in this, btw. I have looked and done massive
searches on Google et al and haven't been able to come up with any
recent examples of prosecuted "Common Law" offenses.
Even the hallowed old "Unwritten Law" has been poured out that
self-same window.
If I come home and find my wife with another man, the "Unwritten
Law" says I am justified in killing one or both of them.
However, the statutes - which is what the High Sheriff is gonna pay
attention to - says that I'm going to serve from twenty years to
life with the quite, very real, possibility of getting that lil ole
shot in the arm and taking the long trip.
Gray Shockley
------------------
"Four grey walls . . " dontchaknow.
.
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| User: "Bob LeChevalier" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 10:05:23 PM |
|
|
Gray Shockley <grayshockley@gmail.com> wrote:
On Fri, 4 Nov 2005 12:12:27 -0600, David Jensen wrote:
Define what activist means to you.
The person who gathered the info that I referred to (since I think
activist is relatively meaningless in the Common Law tradition, I hardly
would consider it a smear) was effectively defining it to mean any vote
to
"Common Law" goes out the window
when statutes come through the door.
I can remember in the 1960's when the state [Mississippi]
legislature passed a law making invalid any common law married
couples from that date on. (I imagine you can understand why.]
Could you, please, give some examples of the "Common Law" being
invoked in the last ten or twenty years?
If you know the definition of common law, the question answers itself:
<--------------------------------------------------------------------------------
<
<tutorials > definitions > common law
<
<Common law
<A system of law that is derived from judges' decisions (which arise
< from the judicial branch of government), rather than statutes or
< constitutions (which are derived from the legislative branch of
< government).
A "common law marriage" was a marriage that was recognized by judges
in a decision (usually involving survivor or property or custody
rights) after not having been initiated or documented in accordance
with the statutes.
Even the hallowed old "Unwritten Law" has been poured out that
self-same window.
If I come home and find my wife with another man, the "Unwritten
Law" says I am justified in killing one or both of them.
However, the statutes - which is what the High Sheriff is gonna pay
attention to - says that I'm going to serve from twenty years to
life with the quite, very real, possibility of getting that lil ole
shot in the arm and taking the long trip.
But if you get off because you weren't Mirandized, then it was
probably common law that got you off.
lojbab
.
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| User: "David Jensen" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 05:15:02 PM |
|
|
On Fri, 4 Nov 2005 16:55:56 -0600, in alt.atheism
Gray Shockley <grayshockley@gmail.com> wrote in
<0001HW.BF91431C002D607FF0284550@news.giganews.com>:
On Fri, 4 Nov 2005 12:12:27 -0600, David Jensen wrote:
Define what activist means to you.
The person who gathered the info that I referred to (since I think
activist is relatively meaningless in the Common Law tradition, I hardly
would consider it a smear) was effectively defining it to mean any vote
to overturn a law or part of a law as unconstitutional.
"Common Law" goes out the window
when statutes come through the door.
I can remember in the 1960's when the state [Mississippi]
legislature passed a law making invalid any common law married
couples from that date on. (I imagine you can understand why.]
Most states decided to stop the practice of common law marriages. I
actually doubt that any mixed race couples were ever given the benefit
of common law marriage in states with anti-miscegenation laws. I think
that most of them did it for bureaucratic convenience.
Could you, please, give some examples of the "Common Law" being
invoked in the last ten or twenty years?
Every appellate case that deals with precedent.
Common Law is the traditional British legal system, inherited by a
number of countries. While judges are no longer allowed to punish people
for criminal actions that have not been proscribed by the legislature,
the adherence to precedent and ability to weigh conflicting laws, either
statute or judicial precedent, still exists. Statutes have also been
part of the mix as long as the tradition has been called the Common Law.
I'm totally sincere in this, btw. I have looked and done massive
searches on Google et al and haven't been able to come up with any
recent examples of prosecuted "Common Law" offenses.
Those were abolished, or, more accurately, they were made part of the
statutes by the various legislatures. That was only a small part of the
Common Law, however; the entire system was the Common Law, not just the
few criminal cases that judges were allowed to try as an extension of
the logic of the statutes.
Even the hallowed old "Unwritten Law" has been poured out that
self-same window.
If I come home and find my wife with another man, the "Unwritten
Law" says I am justified in killing one or both of them.
However, the statutes - which is what the High Sheriff is gonna pay
attention to - says that I'm going to serve from twenty years to
life with the quite, very real, possibility of getting that lil ole
shot in the arm and taking the long trip.
It should be that way, but there are many places in this country that
the jury would excuse such behavior if the skin colors of the
participants changed their mind.
.
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| User: "Gray Shockley" |
|
| Title: Judicial Activism: The Oakland Cannabis Case [was:JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test!] |
04 Nov 2005 05:54:18 PM |
|
|
On Fri, 4 Nov 2005 17:15:02 -0600, David Jensen wrote:
On Fri, 4 Nov 2005 16:55:56 -0600, in alt.atheism
Gray Shockley <grayshockley@gmail.com> wrote in
<0001HW.BF91431C002D607FF0284550@news.giganews.com>:
On Fri, 4 Nov 2005 12:12:27 -0600, David Jensen wrote:
Define what activist means to you.
The person who gathered the info that I referred to (since I think
activist is relatively meaningless in the Common Law tradition, I hardly
would consider it a smear) was effectively defining it to mean any vote
to overturn a law or part of a law as unconstitutional.
"Common Law" goes out the window
when statutes come through the door.
I can remember in the 1960's when the state [Mississippi]
legislature passed a law making invalid any common law married
couples from that date on. (I imagine you can understand why.]
Most states decided to stop the practice of common law marriages. I
actually doubt that any mixed race couples were ever given the benefit
of common law marriage in states with anti-miscegenation laws. I think
that most of them did it for bureaucratic convenience.
Could you, please, give some examples of the "Common Law" being
invoked in the last ten or twenty years?
Every appellate case that deals with precedent.
Common Law is the traditional British legal system, inherited by a
number of countries. While judges are no longer allowed to punish people
for criminal actions that have not been proscribed by the legislature,
the adherence to precedent and ability to weigh conflicting laws, either
statute or judicial precedent, still exists. Statutes have also been
part of the mix as long as the tradition has been called the Common Law.
The Cooperative contends, however, that notwithstanding the
apparently absolute language of §841(a), the statute is subject to
additional, implied exceptions, one of which is medical necessity.
According to the Cooperative, because necessity was a defense at
common law, medical necessity should be read into the Controlled
Substances Act. We disagree.
As an initial matter, we note that it is an open question
whether federal courts ever have authority to recognize a necessity
defense not provided by statute. A necessity defense "traditionally
covered the situation where physical forces beyond the actor's
control rendered illegal conduct the lesser of two evils." United
States v. Bailey, 444 U. S. 394, 410 (1980). Even at common law,
the defense of necessity was somewhat controversial. See, e.g.,
Queen v. Dudley & Stephens, 14 Q. B. 273 (1884). And under our
constitutional system, in which federal crimes are defined by
statute rather than by common law, see United States v. Hudson, 7
Cranch 32, 34 (1812), it is especially so. As we have stated:
"Whether, as a policy matter, an exemption should be created is a
question for legislative judgment, not judicial inference." United
States v. Rutherford, 442 U. S. 544, 559 (1979). Nonetheless, we
recognize that this Court has discussed the possibility of a
necessity defense without altogether rejecting it. See, e.g.,
Bailey, supra, at 415.3
excerpted from: UNITED STATES v. OAKLAND CANNABIS BUYERS'
COOPERATIVE et al.
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&i
nvol=00-151>
year: 2001
Thomas, J., delivered the opinion of the Court, in which
Rehnquist, C. J., and O'Connor, Scalia, and Kennedy, JJ., joined.
Stevens, J., filed an opinion concurring in the judgment, in which
Souter and Ginsburg, JJ., joined. Breyer, J., took no part in the
consideration or decision of the case.
++ gray
I'm totally sincere in this, btw. I have looked and done massive
searches on Google et al and haven't been able to come up with any
recent examples of prosecuted "Common Law" offenses.
Those were abolished, or, more accurately, they were made part of the
statutes by the various legislatures. That was only a small part of the
Common Law, however; the entire system was the Common Law, not just the
few criminal cases that judges were allowed to try as an extension of
the logic of the statutes.
Even the hallowed old "Unwritten Law" has been poured out that
self-same window.
If I come home and find my wife with another man, the "Unwritten
Law" says I am justified in killing one or both of them.
However, the statutes - which is what the High Sheriff is gonna pay
attention to - says that I'm going to serve from twenty years to
life with the quite, very real, possibility of getting that lil ole
shot in the arm and taking the long trip.
It should be that way, but there are many places in this country that
the jury would excuse such behavior if the skin colors of the
participants changed their mind.
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| User: "David Jensen" |
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| Title: Re: Judicial Activism: The Oakland Cannabis Case [was:JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test!] |
04 Nov 2005 07:05:09 PM |
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On Fri, 4 Nov 2005 17:54:18 -0600, in alt.atheism
Gray Shockley <grayshockley@gmail.com> wrote in
<0001HW.BF9150CA00309534F0284550@news.giganews.com>:
On Fri, 4 Nov 2005 17:15:02 -0600, David Jensen wrote:
On Fri, 4 Nov 2005 16:55:56 -0600, in alt.atheism
Gray Shockley <grayshockley@gmail.com> wrote in
<0001HW.BF91431C002D607FF0284550@news.giganews.com>:
On Fri, 4 Nov 2005 12:12:27 -0600, David Jensen wrote:
Define what activist means to you.
The person who gathered the info that I referred to (since I think
activist is relatively meaningless in the Common Law tradition, I hardly
would consider it a smear) was effectively defining it to mean any vote
to overturn a law or part of a law as unconstitutional.
"Common Law" goes out the window
when statutes come through the door.
I can remember in the 1960's when the state [Mississippi]
legislature passed a law making invalid any common law married
couples from that date on. (I imagine you can understand why.]
Most states decided to stop the practice of common law marriages. I
actually doubt that any mixed race couples were ever given the benefit
of common law marriage in states with anti-miscegenation laws. I think
that most of them did it for bureaucratic convenience.
Could you, please, give some examples of the "Common Law" being
invoked in the last ten or twenty years?
Every appellate case that deals with precedent.
Common Law is the traditional British legal system, inherited by a
number of countries. While judges are no longer allowed to punish people
for criminal actions that have not been proscribed by the legislature,
the adherence to precedent and ability to weigh conflicting laws, either
statute or judicial precedent, still exists. Statutes have also been
part of the mix as long as the tradition has been called the Common Law.
The Cooperative contends, however, that notwithstanding the
apparently absolute language of §841(a), the statute is subject to
additional, implied exceptions, one of which is medical necessity.
According to the Cooperative, because necessity was a defense at
common law, medical necessity should be read into the Controlled
Substances Act. We disagree.
As an initial matter, we note that it is an open question
whether federal courts ever have authority to recognize a necessity
defense not provided by statute. A necessity defense "traditionally
covered the situation where physical forces beyond the actor's
control rendered illegal conduct the lesser of two evils." United
States v. Bailey, 444 U. S. 394, 410 (1980). Even at common law,
the defense of necessity was somewhat controversial. See, e.g.,
Queen v. Dudley & Stephens, 14 Q. B. 273 (1884). And under our
constitutional system, in which federal crimes are defined by
statute rather than by common law, see United States v. Hudson, 7
Cranch 32, 34 (1812), it is especially so. As we have stated:
"Whether, as a policy matter, an exemption should be created is a
question for legislative judgment, not judicial inference." United
States v. Rutherford, 442 U. S. 544, 559 (1979). Nonetheless, we
recognize that this Court has discussed the possibility of a
necessity defense without altogether rejecting it. See, e.g.,
Bailey, supra, at 415.3
excerpted from: UNITED STATES v. OAKLAND CANNABIS BUYERS'
COOPERATIVE et al.
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&i
nvol=00-151>
year: 2001
Thomas, J., delivered the opinion of the Court, in which
Rehnquist, C. J., and O'Connor, Scalia, and Kennedy, JJ., joined.
Stevens, J., filed an opinion concurring in the judgment, in which
Souter and Ginsburg, JJ., joined. Breyer, J., took no part in the
consideration or decision of the case.
++ gray
The legislative body has always had the right to overturn any common law
decision. If it is a decision about the application of law, the
legislative body can change the language of the law to reflect their
preference. If it is a decision about the constitutionality of a law,
there is an amending procedure.
I find it most remarkable that there are many self-described
conservatives who are unwilling to accept Kelo as a conservative
decision, apparently because of the way the justices voted, particularly
since the law in question is a very pro-business law and the
constitutional provision has historically been focused on fair
recompense for those who have lost their property. Legislative bodies,
responding to business interests passed these laws.
I think that the process used in Kelo is horrible and can lead to
corruption and that it is very likely that corruption is involved in
some of these cases, but that does not make it unconstitutional to pass
any law that leads to corruption, but it seems that it shouldn't be very
hard to get liberals who are opposed to making developers wealthier to
join with conservatives who are offended at what they consider to be a
misuse of eminent domain to abolish such misuse in every state.
I'm totally sincere in this, btw. I have looked and done massive
searches on Google et al and haven't been able to come up with any
recent examples of prosecuted "Common Law" offenses.
Those were abolished, or, more accurately, they were made part of the
statutes by the various legislatures. That was only a small part of the
Common Law, however; the entire system was the Common Law, not just the
few criminal cases that judges were allowed to try as an extension of
the logic of the statutes.
Even the hallowed old "Unwritten Law" has been poured out that
self-same window.
If I come home and find my wife with another man, the "Unwritten
Law" says I am justified in killing one or both of them.
However, the statutes - which is what the High Sheriff is gonna pay
attention to - says that I'm going to serve from twenty years to
life with the quite, very real, possibility of getting that lil ole
shot in the arm and taking the long trip.
It should be that way, but there are many places in this country that
the jury would excuse such behavior if the skin colors of the
participants changed their mind.
.
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| User: "Gray Shockley" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 04:23:46 PM |
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On Fri, 4 Nov 2005 10:57:22 -0600, Mickey wrote:
You know, this smear is tossed around an awful lot at judges on both
sides. How about a few citations. In particular, I would be curious how
a justice whose reputation rests in large part on his dissents can be
called activist. Doesn't being in the dissent kind of limit one's
ability to be active.
Just because he fails at being an "activist"
doesn't make him less of an activist.
And there are chances and choices that,
soon, he will be in on the majority opinions
most of the time.
If Associate Justice Antonin Scalia becomes the voice of the
Supreme Court, I predict that it will take the United States a long
time to get back to a republican form of government.
Gray Shockley
--------------------------
Swinehood hath no remedy.
- Sidney Lanier
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| User: "Cary Kittrell" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 04:50:44 PM |
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In article <0001HW.BF913B92002B9C2BF0284550@news.giganews.com> writes:
On Fri, 4 Nov 2005 10:57:22 -0600, Mickey wrote:
You know, this smear is tossed around an awful lot at judges on both
sides. How about a few citations. In particular, I would be curious how
a justice whose reputation rests in large part on his dissents can be
called activist. Doesn't being in the dissent kind of limit one's
ability to be active.
Just because he fails at being an "activist"
doesn't make him less of an activist.
And there are chances and choices that,
soon, he will be in on the majority opinions
most of the time.
If Associate Justice Antonin Scalia becomes the voice of the
Supreme Court, I predict that it will take the United States a long
time to get back to a republican form of government.
That's an intentional set-up, right?
-- cary
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| User: "Mickey" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10thAmendment test! |
04 Nov 2005 05:43:11 PM |
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Cary Kittrell wrote:
In article <0001HW.BF913B92002B9C2BF0284550@news.giganews.com> writes:
On Fri, 4 Nov 2005 10:57:22 -0600, Mickey wrote:
You know, this smear is tossed around an awful lot at judges on both
sides. How about a few citations. In particular, I would be curious how
a justice whose reputation rests in large part on his dissents can be
called activist. Doesn't being in the dissent kind of limit one's
ability to be active.
Just because he fails at being an "activist"
doesn't make him less of an activist.
Just because you fail at being logical
doesn't make you less logical...
Oh my bad. Sorry, I guess it does.
Still, no one has cited an example of Scalia'a activism.
And there are chances and choices that,
soon, he will be in on the majority opinions
most of the time.
If Associate Justice Antonin Scalia becomes the voice of the
Supreme Court, I predict that it will take the United States a long
time to get back to a republican form of government.
That's an intentional set-up, right?
-- cary
Only if you conveniently forget that there is in this country a
presumption of innocence, and that whether Scalia is an activist
depends, if I may borrow a lick from Pres. Bill, what the meaning of
"will be" is.
Recalling the words of John Houseman, why do you assume Justice Scalia
will become the voice of the Supreme Court? Get that revelation from
Shirley MacClaine or from her whack job brother, Bulworth?
Semi-seriously, if you were afraid of judicial activism, wouldn't you
want people on the court whose judicial philosophy includes an abhorance
of legislating from the bench.
Oh, and one more thing... don't look under your bed. Scalia, Thomas,
Freddie Krueger and a bunch of other Bogiemen are down there just
waiting....
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| User: "Bob LeChevalier" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
05 Nov 2005 09:37:43 AM |
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Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
Cary Kittrell wrote:
In article <0001HW.BF913B92002B9C2BF0284550@news.giganews.com> writes:
On Fri, 4 Nov 2005 10:57:22 -0600, Mickey wrote:
You know, this smear is tossed around an awful lot at judges on both
sides. How about a few citations. In particular, I would be curious how
a justice whose reputation rests in large part on his dissents can be
called activist. Doesn't being in the dissent kind of limit one's
ability to be active.
Just because he fails at being an "activist"
doesn't make him less of an activist.
Just because you fail at being logical
doesn't make you less logical...
Oh my bad. Sorry, I guess it does.
Still, no one has cited an example of Scalia'a activism.
Start with Bush vs Gore and go from there.
http://www.reason.com/0510/co.cy.antonin.shtml
http://www.theocracywatch.org/scalia_activist_times_apr19_05.htm
lojbab
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| User: "David Jensen" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 07:06:38 PM |
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On Fri, 04 Nov 2005 23:43:11 GMT, in alt.atheism
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote in
<jmSaf.13062$Zv5.7098@newssvr25.news.prodigy.net>:
Cary Kittrell wrote:
In article <0001HW.BF913B92002B9C2BF0284550@news.giganews.com> writes:
On Fri, 4 Nov 2005 10:57:22 -0600, Mickey wrote:
You know, this smear is tossed around an awful lot at judges on both
sides. How about a few citations. In particular, I would be curious how
a justice whose reputation rests in large part on his dissents can be
called activist. Doesn't being in the dissent kind of limit one's
ability to be active.
Just because he fails at being an "activist"
doesn't make him less of an activist.
Just because you fail at being logical
doesn't make you less logical...
Oh my bad. Sorry, I guess it does.
Still, no one has cited an example of Scalia'a activism.
Does voting to overturn an act of Congress or a legislature count as
activism?
And there are chances and choices that,
soon, he will be in on the majority opinions
most of the time.
If Associate Justice Antonin Scalia becomes the voice of the
Supreme Court, I predict that it will take the United States a long
time to get back to a republican form of government.
That's an intentional set-up, right?
-- cary
Only if you conveniently forget that there is in this country a
presumption of innocence, and that whether Scalia is an activist
depends, if I may borrow a lick from Pres. Bill, what the meaning of
"will be" is.
Recalling the words of John Houseman, why do you assume Justice Scalia
will become the voice of the Supreme Court? Get that revelation from
Shirley MacClaine or from her whack job brother, Bulworth?
Semi-seriously, if you were afraid of judicial activism, wouldn't you
want people on the court whose judicial philosophy includes an abhorance
of legislating from the bench.
Which is certainly something that Scalia has never shied away from.
Oh, and one more thing... don't look under your bed. Scalia, Thomas,
Freddie Krueger and a bunch of other Bogiemen are down there just
waiting....
.
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| User: "Mickey" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10thAmendment test! |
04 Nov 2005 08:10:54 PM |
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David Jensen wrote:
On Fri, 04 Nov 2005 23:43:11 GMT, in alt.atheism
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote in
<jmSaf.13062$Zv5.7098@newssvr25.news.prodigy.net>:
Cary Kittrell wrote:
In article <0001HW.BF913B92002B9C2BF0284550@news.giganews.com> writes:
On Fri, 4 Nov 2005 10:57:22 -0600, Mickey wrote:
You know, this smear is tossed around an awful lot at judges on both
sides. How about a few citations. In particular, I would be curious how
a justice whose reputation rests in large part on his dissents can be
called activist. Doesn't being in the dissent kind of limit one's
ability to be active.
Just because he fails at being an "activist"
doesn't make him less of an activist.
Just because you fail at being logical
doesn't make you less logical...
Oh my bad. Sorry, I guess it does.
Still, no one has cited an example of Scalia'a activism.
Does voting to overturn an act of Congress or a legislature count as
activism?
Not if said act of Congress is unconstitutional. Using a style of
argument popular around here: How about Congress passes a bill making
slavery legal and people of Tibetan heritage only 2/3 of a person for
census purposes and bunch of other similarly insane stuff. You're
telling me justices on SCOTUS aren't supposed to overturn such crap at
the first opportunity. Get thee real.
And there are chances and choices that,
soon, he will be in on the majority opinions
most of the time.
If Associate Justice Anto | | | | | | | | | | | | | |
