| Topic: |
Science > Philosophy |
| User: |
"Robert Cohen" |
| Date: |
12 Sep 2005 10:44:03 AM |
| Object: |
NYT OP ED: 25 Questions for Judge Roberts |
I skimmed the 5 (each) scholars' questions. They are generally
interesting, though I will rush-in with the related boogers below.
I took a year of Constitutional Law as a senior in polisci. It was an
undergraduate senior course at my southeastern state university.
For an amateur legal buff(oon), I got A's (very proud of rare
accomplishment), and recall re-reading ad nauseam (over 'n over 'n
over) the wonderful significant cases textbook of Mason & Beaney.
My questions:
1. Judge Roberts, why is Marbury vs Madison considered so important?
Should "judicial review" be over-turned? Should the "implied power" of
the Constitution be utilized as pertinent, or should the Constitution
be taken more literally than it has been?
2. Judge Roberts, discuss the "interstate commerce clause." Should it
now be limited to its pre-Depression, pre-New Deal legal status?
3. Is an industry legally/theoretically allowed to sell products for
lower prices to worldwide distributors/buyers than to domestic
distributors/buyers? (Guess which industry apparently does such via
apparently effectively manipulating the prevailing politics?)
4. Should Supreme Court Justices themselves (as casually
mentioned/rumored in an article I read in NEWSWEEK) play-in innocuous
sports betting pools and apparently in low stakes poker games? Is our
society divided between the caught and the uncaught, the
elite/unelite, and the "connected"/"un-connected," or is much just a
matter of economic and social class? (What folkways, mores, customs,
and taboos am i violating by this impudent Lenny Bruceism f'-you
question?)
5. Are Supreme Court Justices more or less functioning as our society's
ad hoc "gods & goddesses," because of the inherent nature of their
ultimate subjective interpreting authority in arbitrating (legalistic)
reality? (As they say in the midwest: You betcha)
http://www.nytimes.com/2005/09/12/opinion/12smith.html?hp
.
|
|
| User: "Immortalist" |
|
| Title: Re: NYT OP ED: 25 Questions for Judge Roberts |
12 Sep 2005 12:21:03 PM |
|
|
Robert Cohen wrote:
I skimmed the 5 (each) scholars' questions. They are generally
interesting, though I will rush-in with the related boogers below.
I took a year of Constitutional Law as a senior in polisci. It was an
undergraduate senior course at my southeastern state university.
Therefore you have chosen a side to be on? Or is this simply a matter
of degree instead of kinds of things? That judge may want to preserve
the seperation of powers to a more or less quantitative degree than you
and ideology has little to do with different kinds here. What about
checks and balances? Should each power institution be able to bite the
others to some degree and actually have powers or should just liberals
have the power?
Separation of powers is a doctrine whereby the legislative, executive
and judicial branches of government are distinct to prevent abuse of
power. The doctrine traces back to ancient Greece and was further
developed by English and French philosophers. In the United States
Constitution, the phrase separation of powers never appears, but is
clearly implied by the structure of the Constitution. Therein, "all
legislative Powers" are "vested in a Congress of the United States",
"the executive Power" is "vested in the President of the United States,
and "the judicial Power" is "vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and
establish". Each branch has powers that restrain the other branches in
a system of checks and balances that are designed to prevent the
concentration and abuse of power.
The Constitution does not dictate that state governments be comprised
of three separate branches; they need only have a republican form of
government. Nevertheless, most states have adopted systems of
government whereby separation of powers is preserved, with state
legislatures, executive governors, and state court systems.
Another strict constitutional principle delineated in the United States
Constitution and referred to as a separation of powers, is that between
the federal level of government and the state level. This principle is
more often referred to as federalism (q.v.).
http://www.abanet.org/govaffairs/judiciary/report.html
An Independent Judiciary
Report of the ABA Commission on Separation of Powers and Judicial
Independence
Separation of Powers & Judicial Independence
----------------------------------------------
[1] Opening
An independent judiciary with judges who decide
issues under law without fear or favor is a
necessary means by which to accomplish both
real and apparent justice for all.
To Text | www.abanet.org/govaffairs/judiciary/ropen.html
----------------------------------------------
[2] Overview
The constitutional protections for judicial
independence should be cherished, not challenged.
Over two hundred years of experience confirm the
wisdom of our nation's founders that judicial
independence is the most essential characteristic
of a free society.
To Text | www.abanet.org/govaffairs/judiciary/rover.html
----------------------------------------------
[3] Origins of the Current Tensions: Overview
of Judicial Independence Accountability Debate
To Text | www.abanet.org/govaffairs/judiciary/rorigin.html
----------------------------------------------
[4] History & Evolution of Judicial Independence
- Constitutional Text
- Original Understanding of Judicial Independence
- Evolution of Judicial Independence
- Decisional Independence
- Institutional Independence
To Text | www.abanet.org/govaffairs/judiciary/rhistory.html
----------------------------------------------
[5] Federal Judicial Indpendence:
Review of Recent Issues & Arguments
[A] - Decisional Independence Issues
- Judicial Criticism
- Public Confidence
- Judicial Activism
- Judicial Appointments
- Congressional Modification of Judicial Decisions
To Text | www.abanet.org/govaffairs/judiciary/rdecind.html
----------------------------------------------
[B] - Institutional Independence Issues
- Political Branch Control of Judiciary's Financial Resources
- Judicial Salaries
- Appropriations
- Congressional Control of Judiciary's Internal Administration
- Legislative Oversight of Judicial Administration
- Judicial Discipline
- Congressional Control Over Court Practice and Procedure
- Procedural Rulemaking
- The Civil Justice Reform Act of 1990
To Text | www.abanet.org/govaffairs/judiciary/r4b.html
----------------------------------------------
[6] State Judicial Independence:
A Review of Recent Issues & Arguments
- Issues Shared Between the State and Federal Systems
- Judicial Elections Generally
- Campaign Finance
- Reactions From Bar Leaders
To Text | www.abanet.org/govaffairs/judiciary/r5.html
----------------------------------------------
[7] Findings, Conclusions and Recommendations
[A] - General State of Federal Judicial Independence
- Maintaining the Appropriate Balance Between
Independence and Accountability is of Critical
Importance to Our Democracy. Current Mechanisms
for Promoting Accountability and Preserving
Independence are Essentially Sound; and Efforts
to Modify Them are Subjects of Concern
- Several Recent Events Pose a Potential
Threat to Federal Judicial Independence
To Text | www.abanet.org/govaffairs/judiciary/r6a.html
----------------------------------------------
[B] - Findings, Conclusions & Recommendations Addressing
Federal Judicial Independence Problems
- Issues Affecting Courts' Decision-Making Independence
- Judicial Criticism
- Threats of Impeachment and Removal
- Judicial Activism
- Misleading Criticism
- Judicial Appointments
- Issues Affecting the Courts' Institutional Independence
- Political Branch Control Over the Judiciary's
Administration, Practice and Procedure
- Political Branch Control Over the Judiciary's
Appropriations: The Line-Item Veto
- Congressional Limits on or Curtailment of Jurisdiction
- Judicial Compensation
- Judicial Discipline
- Issues Affecting Public Confidence in the Judiciary
To Text | www.abanet.org/govaffairs/judiciary/r6b.html
----------------------------------------------
[C] - Findings, Conclusions & Recommendations Addressing
State Judicial Independence Problems
To Text | www.abanet.org/govaffairs/judiciary/r6c.html
----------------------------------------------
[8] Conclusion
- the courts are now besieged by
unprecedented assaults from all sides
- a number of potentially serious problems
exist that, if left unremedied, could degenerate
into real threats to judicial independence.
To Text | www.abanet.org/govaffairs/judiciary/r7.html
For an amateur legal buff(oon), I got A's (very proud of rare
accomplishment), and recall re-reading ad nauseam (over 'n over 'n
over) the wonderful significant cases textbook of Mason & Beaney.
My questions:
1. Judge Roberts, why is Marbury vs Madison considered so important?
Should "judicial review" be over-turned? Should the "implied power" of
the Constitution be utilized as pertinent, or should the Constitution
be taken more literally than it has been?
2. Judge Roberts, discuss the "interstate commerce clause." Should it
now be limited to its pre-Depression, pre-New Deal legal status?
3. Is an industry legally/theoretically allowed to sell products for
lower prices to worldwide distributors/buyers than to domestic
distributors/buyers? (Guess which industry apparently does such via
apparently effectively manipulating the prevailing politics?)
4. Should Supreme Court Justices themselves (as casually
mentioned/rumored in an article I read in NEWSWEEK) play-in innocuous
sports betting pools and apparently in low stakes poker games? Is our
society divided between the caught and the uncaught, the
elite/unelite, and the "connected"/"un-connected," or is much just a
matter of economic and social class? (What folkways, mores, customs,
and taboos am i violating by this impudent Lenny Bruceism f'-you
question?)
5. Are Supreme Court Justices more or less functioning as our society's
ad hoc "gods & goddesses," because of the inherent nature of their
ultimate subjective interpreting authority in arbitrating (legalistic)
reality? (As they say in the midwest: You betcha)
http://www.nytimes.com/2005/09/12/opinion/12smith.html?hp
.
|
|
|
| User: "Robert Cohen" |
|
| Title: Re: NYT OP ED: 25 Questions for Judge Roberts |
12 Sep 2005 04:24:27 PM |
|
|
I have been posting about law & the Supreme Court for years, and there
are several existing pages via googling, "robtcohen Supreme Court,"
that I've previously composed.
In order to clarify my pov, here is some of that explanation for the
questions.
1. Robert Cohen Feb 20, 11:10 pm show options
Newsgroups: alt.philosophy.law
From: "Robert Cohen" <robtco...@msn.com> - Find messages by this author
Date: 20 Feb 2005 19:10:46 -0800
Local: Sun, Feb 20 2005 11:10 pm
Subject: Robertson Bludgeons Non Strict Constructionism
Reply to Author | Forward | Print | Individual Message | Show original
| Remove | Report Abuse
Pat Robertson spoke to The National Press Club earlier this week.
He is famous, a brilliant orator; and I am admittedly a nobody.
But the audience of journalists allowed Pat to get clean away with
touting some ole timey nonsense about the U.S. Constitution.
Pat has a J.D. degree.
I have only had a few quarter hours of Constitutional Law, as a
political science curriculum requirement, plus some course studying of
Hans Kelsen's theory of legal positivism (versus natural law).
If I were there questioning Robertson, here's my question:
What about Marbury versus Madison? Do you accept that decision?
Chief Justice Marshall's interpretation of the then young/baby
Constitution established the precedence or principle or stare decisis
of "implied power" of interpreting the Constitution the judicial or of
Court review of Congressional legislation (& of reviewing
Presidential/Executive action as as I understand the meaning of
Marbury).
The important Marshal phrase is IMPLIED POWER.
Every decision the Supreme Court makes changes/modifies/applies the
legislative-made laws, sometimes by arbitrarily liberally inferring the
implied intents.
Pat (seems to) apparently holds the Constitution is to be interpreted
literally and/or by the judge closely interpreting intentions of the
legislators, and I suggest he ignores important dynamics, events,
decisions and reasons why such isn't always done.
If anybody reading this note would argue Pat's position(s), then please
do, and then let us treat one another with the respect due opposing
debaters.
In the course of our debate, I may be re-posting some previous notes of
my stances on the Supreme Court and Constitution that are stored so
very conveniently by the wonderful Google.
If nobody replies, I moght be re-posting my ideas onto this thread
anyway, because, for instance, the National Press Club & audience need
some propmting & explaining from my peanut gallery perspective which is
counter to Pat's.
2. Robert Cohen Feb 21, 9:25 pm show options
Newsgroups: alt.philosophy.law
From: "Robert Cohen" <robtco...@msn.com> - Find messages by this author
Date: 21 Feb 2005 17:25:05 -0800
Local: Mon, Feb 21 2005 9:25 pm
Subject: Re: Robertson Bludgeons Non Strict Constructionism
Reply to Author | Forward | Print | Individual Message | Show original
| Remove | Report Abuse
Law Is A Dynamic Product Of Folkways, Mores, Customs, Traditions, and
Taboos
The purpose of the
following is to state my current ideas about the origins and functions
of law.
I hope to be posting at least a couple of notes. I invite the reader to
challenge, supplement, and trash the bilge.
My background is from studying "law" as "political science" rather
than as a
vocation.
There are two main schools or perspectives about the origin(s) of law:
1. Natural Law.
2. Legal Positivism.
I tend to think of myself as a legal positivist. This has to do with
thinking
of law as being man-made and as law NOT being derived from a
metaphysical
source.
The concept of "basic fictional norm" as an origin of legal positivism
is not
fully satisfying, and I request the reader to jump-in.
"Basic Fictional Norm" as a base of "legal positivism" APPARENTLY
means the
....
(what?). I urgently request the reader's input.
Does "basic fictional norm" have to do with humankind's deities, myths
&
superstitions?
Does "basic fictional norm" have to do with customary established
cultural
"normatives" or institutions--the practical accomodations and
contrivances
derived from our earliest
tribal & group inter-actions?
What is the meaning of "basic fictional norm" in philosophy of legal
positivism of the Norwegian (?) professor Hans Kelsen?
Anyhow, if you've gotten this far, THANKS:
I am not an exponent of "natural law."
While I obviously do not totally understand "legal positivism," I
understand
"natural law" even less.
What do you think "natural law" is
about? The very phrase is invoked
frequently--it's a shibboleth.
What in the heck does it mean?
Is it about "basic inalienable rights?"
I think "legal positivists" claim that "rights" are artificial
human-made
constructs?
So, this agonizingly prolonged note is not really in fact a didactic
lecture.
I tend to be a "legal positivist," while not totally
understanding the very concept nor
comprehending your "natural law."
I have written "your" because I perceive the typical reader as probably
being
of the
natural law school perspective. I am thus writing to convince him/her
otherwise.
I am making a very big deal out of all of this because the United
States
Constitution and its interpretation--and its practical everyday
applications--
are so much about:
The politics & necessities of the time or moment in time.
On the first October Mondays: our USA's nine gods & goddesses wearing
traditional black robes--the Chief Justice's with those stripes now
<g>::
Pronounce (or avoid) what constitutes reality. Pronounce (or avoid)
what the
U.S. Constitution is. Pronounce (or avoid) what the local yokel law
is.
Pronounce (or avoid) what nuance of personal behavior is acceptable.
Their decisions are frequently split with the majority ruling and
dissents
noted.
Imho--VERY humble opinions:
The legalistic authority & predilections of our judiciary is actually
based
upon...ta-da:
The cultural normatives of our society, which consist of our (hopefully
adaptive)
dynamical folkways, mores, customs, traditions, and taboos.
Our nine "gods & goddesses" are
SUBJECTIVELY INTERPRETING
& APPLYING their very best & most heartfelt in good faith perceptions
of
adaptive reality
They perceive their function as being of the "holy secular."
The Supreme Court consiists of political appointees.
The President appoints 'em with two-thirds of Senate approval.
The President is elected by the appendix Electoral College political
elite--and
the plurality of the popular vote.
The Senators--formerly appointed by the State legislatures--are also
popular elected.
For the functioning of our society, our great nation, our existence:
Our politically appointed judiciary
has the holy secular responsibility
to arbitrarily interpret the Constitution and various
legalistic statutes..
Law is human-made.
It is certainly extremely important that we as the people have good
vibes
about our judiciary. We oughta honor & respect it & promote its highest
ethical
& moral character.
Though, intellectually, imho, it's ok to question and de-construct
the whole shebang in an academic exercise such as this.
i'll be backkkkk
-
3. Robert Cohen Feb 23, 11:13 am show options
Newsgroups: alt.philosophy.law
From: "Robert Cohen" <robtco...@msn.com> - Find messages by this author
Date: 23 Feb 2005 07:13:38 -0800
Local: Wed, Feb 23 2005 11:13 am
Subject: Re: Robertson Bludgeons Non Strict Constructionism
Reply to Author | Forward | Print | Individual Message | Show original
| Remove | Report Abuse
Laws
are human-made constructs,
devices, inventions, and fabrications.
I am of a "legal positivism" rather
than a "natural law" mentality &
orientation.
Nuances of differences refers to
legalistic hair-splittings; and--in my
perception of reality--nevertheless provide the substance
from whence court decisions derive.
What is "interstate commerce" is
a very big deal in our Federal-State
historical arrangements and controversies.
Two conflicting examples of classic Supreme Court cases regard
oleomargarine
(declared as regulated "interstate commerce") in the later 19th
century and
Shecter Bros.
poultry case (not valid as regulated Agricultural Adjustment Act
Depression
era "interstate commerce") in the earlier 20th century.
The Court finds distinctions to fit into whatever
the justices think is good and appropriate
to promulgate.
The justices (and their gifted law review clerks) can go with
"stare decisis" precedents, or
can respond with novelty in solving a
pressing contemporary
fact situation.
The justices may go with "implied
power," a la the first Chief Justice John Marshall, or be literalists
& absolutists, a la Hugo Black
and (perhaps) today's Antoine Scalia.
The holy
U.S. Constitution is very much interpreted and re-interpreted
by nine politically-appointed
gods & goddesses.
It is "holy," because there could be
anarchy if the populace lost
adherence and respect.
No bar association is pulling my chain. I am a law school dropout.
These are merely my perceptions
and philosophical meanders.
A political leader understands
the apparent necessity of the
people believing in the sanctity,
fairness & decency & inherent justicfe of the Constitution and
legal system.
Sausage-making and law-making
and law-interpreting and law-administering are not necessarily totally
appetizing in
the ordinary real world.
The Constitution is subjectivistically interpreted; and is
relativistic to ad
hoc situations
in the dynamics of the evolving needs & demands of the times
via cases bucked
to courts.
In our civilization, we the public ought not be hostile towards
courts nor despise laws
nor feel alienated.
I perceive our society's existence is fragile, contradictory, complex,
and
confusing.
I consider myself a pragmatist,
utilitarian, eclecticist, and moderate.
Somehow our executives, legislators
and judges must respond to our
society's injustices, complexities & contradictions.
Judges may be political appointees or may be chosen by direct
popular vote.
Judges (& juries & cops) are human beings
steeped & inculcated in the folkways, mores, traditions, customs and
taboos of
the informal prevailing social culture and sub-culture(s),
There is a good ole boy
legal fraternity aspect
in the reality, as there are in
other professions and trades.
The USA is legalistically-driven.
Justices in black robes are
priests of our secular laws.
There is "legal
fiction," and the device's implication may be
relevant to this essay
To sum up myself: laws are sacred
secular
necessary contrivances
.
|
|
|
| User: "Dare" |
|
| Title: Re: NYT OP ED: 25 Questions for Judge Roberts |
14 Sep 2005 10:14:45 AM |
|
|
"Robert Cohen" <robtcohen@msn.com> wrote in message
news:1126560267.569740.204800@g14g2000cwa.googlegroups.com...
I have been posting about law & the Supreme Court for years, and there
are several existing pages via googling, "robtcohen Supreme Court,"
that I've previously composed.
I haven't studied law but am fascinated and a little awed
by the power of the Supreme Court over how we live.
I have been watching some of the Roberts' hearings
with interest. I hope this will spur awareness
of how our judicial/political system affects the populace.
It seems (barring a bombshell or meltdown) Roberts
will be appointed Chief Justice...with yet another
Justice to be appointed later. These appointments
may define our "reality" for years or generations to come.
Hope we're paying attention!
Thanks for these informative posts.
2. Robert Cohen Feb 21, 9:25 pm
Newsgroups: alt.philosophy.law
From: "Robert Cohen" <robtco...@msn.com> -
Date: 21 Feb 2005 17:25:05 -0800
Local: Mon, Feb 21 2005 9:25 pm
Subject: Re: Robertson Bludgeons Non Strict Constructionism
I am making a very big deal out of all of this because the United
States
Constitution and its interpretation--and its practical everyday
applications--
are so much about:
The politics & necessities of the time or moment in time.
On the first October Mondays: our USA's nine gods & goddesses wearing
traditional black robes--the Chief Justice's with those stripes now
<g>::
Pronounce (or avoid) what constitutes reality. Pronounce (or avoid)
what the
U.S. Constitution is. Pronounce (or avoid) what the local yokel law
is.
Pronounce (or avoid) what nuance of personal behavior is acceptable.
Their decisions are frequently split with the majority ruling and
dissents
noted.
Imho--VERY humble opinions:
The legalistic authority & predilections of our judiciary is actually
based
upon...ta-da:
The cultural normatives of our society, which consist of our (hopefully
adaptive)
dynamical folkways, mores, customs, traditions, and taboos.
Our nine "gods & goddesses" are
SUBJECTIVELY INTERPRETING
& APPLYING their very best & most heartfelt in good faith perceptions
of
adaptive reality
They perceive their function as being of the "holy secular."
The Supreme Court consiists of political appointees.
The President appoints 'em with two-thirds of Senate approval.
The President is elected by the appendix Electoral College political
elite--and
the plurality of the popular vote.
The Senators--formerly appointed by the State legislatures--are also
popular elected.
For the functioning of our society, our great nation, our existence:
Our politically appointed judiciary
has the holy secular responsibility
to arbitrarily interpret the Constitution and various
legalistic statutes..
Law is human-made.
It is certainly extremely important that we as the people have good
vibes
about our judiciary. We oughta honor & respect it & promote its highest
ethical
& moral character.
Though, intellectually, imho, it's ok to question and de-construct
the whole shebang in an academic exercise such as this.
i'll be backkkkk
.
|
|
|
|
| User: "Immortalist" |
|
| Title: Re: NYT OP ED: 25 Questions for Judge Roberts |
13 Sep 2005 12:18:11 AM |
|
|
Robert Cohen wrote:
I have been posting about law & the Supreme Court for years, and there
are several existing pages via googling, "robtcohen Supreme Court,"
that I've previously composed.
That looks interesting in that it could change my opinion, let me read
further.
In order to clarify my pov, here is some of that explanation for the
questions.
1. Robert Cohen Feb 20, 11:10 pm show options
Newsgroups: alt.philosophy.law
From: "Robert Cohen" <robtco...@msn.com> - Find messages by this author
Date: 20 Feb 2005 19:10:46 -0800
Local: Sun, Feb 20 2005 11:10 pm
Subject: Robertson Bludgeons Non Strict Constructionism
Reply to Author | Forward | Print | Individual Message | Show original
| Remove | Report Abuse
Pat Robertson spoke to The National Press Club earlier this week.
He is famous, a brilliant orator; and I am admittedly a nobody.
But the audience of journalists allowed Pat to get clean away with
touting some ole timey nonsense about the U.S. Constitution.
Pat has a J.D. degree.
I have only had a few quarter hours of Constitutional Law, as a
political science curriculum requirement, plus some course studying of
Hans Kelsen's theory of legal positivism (versus natural law).
If I were there questioning Robertson, here's my question:
What about Marbury versus Madison? Do you accept that decision?
Chief Justice Marshall's interpretation of the then young/baby
Constitution established the precedence or principle or stare decisis
of "implied power" of interpreting the Constitution the judicial or of
Court review of Congressional legislation (& of reviewing
Presidential/Executive action as as I understand the meaning of
Marbury).
The important Marshal phrase is IMPLIED POWER.
Every decision the Supreme Court makes changes/modifies/applies the
legislative-made laws, sometimes by arbitrarily liberally inferring the
implied intents.
Pat (seems to) apparently holds the Constitution is to be interpreted
literally and/or by the judge closely interpreting intentions of the
legislators, and I suggest he ignores important dynamics, events,
decisions and reasons why such isn't always done.
If anybody reading this note would argue Pat's position(s), then please
do, and then let us treat one another with the respect due opposing
debaters.
In the course of our debate, I may be re-posting some previous notes of
my stances on the Supreme Court and Constitution that are stored so
very conveniently by the wonderful Google.
If nobody replies, I moght be re-posting my ideas onto this thread
anyway, because, for instance, the National Press Club & audience need
some propmting & explaining from my peanut gallery perspective which is
counter to Pat's.
2. Robert Cohen Feb 21, 9:25 pm show options
Newsgroups: alt.philosophy.law
From: "Robert Cohen" <robtco...@msn.com> - Find messages by this author
Date: 21 Feb 2005 17:25:05 -0800
Local: Mon, Feb 21 2005 9:25 pm
Subject: Re: Robertson Bludgeons Non Strict Constructionism
Reply to Author | Forward | Print | Individual Message | Show original
| Remove | Report Abuse
Law Is A Dynamic Product Of Folkways, Mores, Customs, Traditions, and
Taboos
The purpose of the
following is to state my current ideas about the origins and functions
of law.
I hope to be posting at least a couple of notes. I invite the reader to
challenge, supplement, and trash the bilge.
My background is from studying "law" as "political science" rather
than as a
vocation.
There are two main schools or perspectives about the origin(s) of law:
1. Natural Law.
2. Legal Positivism.
I tend to think of myself as a legal positivist. This has to do with
thinking
of law as being man-made and as law NOT being derived from a
metaphysical
source.
The concept of "basic fictional norm" as an origin of legal positivism
is not
fully satisfying, and I request the reader to jump-in.
"Basic Fictional Norm" as a base of "legal positivism" APPARENTLY
means the
...
(what?). I urgently request the reader's input.
Does "basic fictional norm" have to do with humankind's deities, myths
&
superstitions?
Does "basic fictional norm" have to do with customary established
cultural
"normatives" or institutions--the practical accomodations and
contrivances
derived from our earliest
tribal & group inter-actions?
What is the meaning of "basic fictional norm" in philosophy of legal
positivism of the Norwegian (?) professor Hans Kelsen?
Anyhow, if you've gotten this far, THANKS:
I am not an exponent of "natural law."
While I obviously do not totally understand "legal positivism," I
understand
"natural law" even less.
What do you think "natural law" is
about? The very phrase is invoked
frequently--it's a shibboleth.
What in the heck does it mean?
Is it about "basic inalienable rights?"
I think "legal positivists" claim that "rights" are artificial
human-made
constructs?
So, this agonizingly prolonged note is not really in fact a didactic
lecture.
I tend to be a "legal positivist," while not totally
understanding the very concept nor
comprehending your "natural law."
I have written "your" because I perceive the typical reader as probably
being
of the
natural law school perspective. I am thus writing to convince him/her
otherwise.
I am making a very big deal out of all of this because the United
States
Constitution and its interpretation--and its practical everyday
applications--
are so much about:
The politics & necessities of the time or moment in time.
On the first October Mondays: our USA's nine gods & goddesses wearing
traditional black robes--the Chief Justice's with those stripes now
<g>::
Pronounce (or avoid) what constitutes reality. Pronounce (or avoid)
what the
U.S. Constitution is. Pronounce (or avoid) what the local yokel law
is.
Pronounce (or avoid) what nuance of personal behavior is acceptable.
Their decisions are frequently split with the majority ruling and
dissents
noted.
Imho--VERY humble opinions:
The legalistic authority & predilections of our judiciary is actually
based
upon...ta-da:
The cultural normatives of our society, which consist of our (hopefully
adaptive)
dynamical folkways, mores, customs, traditions, and taboos.
Our nine "gods & goddesses" are
SUBJECTIVELY INTERPRETING
& APPLYING their very best & most heartfelt in good faith perceptions
of
adaptive reality
They perceive their function as being of the "holy secular."
The Supreme Court consiists of political appointees.
The President appoints 'em with two-thirds of Senate approval.
The President is elected by the appendix Electoral College political
elite--and
the plurality of the popular vote.
The Senators--formerly appointed by the State legislatures--are also
popular elected.
For the functioning of our society, our great nation, our existence:
Our politically appointed judiciary
has the holy secular responsibility
to arbitrarily interpret the Constitution and various
legalistic statutes..
Law is human-made.
It is certainly extremely important that we as the people have good
vibes
about our judiciary. We oughta honor & respect it & promote its highest
ethical
& moral character.
Though, intellectually, imho, it's ok to question and de-construct
the whole shebang in an academic exercise such as this.
i'll be backkkkk
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3. Robert Cohen Feb 23, 11:13 am show options
Newsgroups: alt.philosophy.law
From: "Robert Cohen" <robtco...@msn.com> - Find messages by this author
Date: 23 Feb 2005 07:13:38 -0800
Local: Wed, Feb 23 2005 11:13 am
Subject: Re: Robertson Bludgeons Non Strict Constructionism
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Laws
are human-made constructs,
devices, inventions, and fabrications.
I am of a "legal positivism" rather
than a "natural law" mentality &
orientation.
Nuances of differences refers to
legalistic hair-splittings; and--in my
perception of reality--nevertheless provide the substance
from whence court decisions derive.
What is "interstate commerce" is
a very big deal in our Federal-State
historical arrangements and controversies.
Two conflicting examples of classic Supreme Court cases regard
oleomargarine
(declared as regulated "interstate commerce") in the later 19th
century and
Shecter Bros.
poultry case (not valid as regulated Agricultural Adjustment Act
Depression
era "interstate commerce") in the earlier 20th century.
The Court finds distinctions to fit into whatever
the justices think is good and appropriate
to promulgate.
The justices (and their gifted law review clerks) can go with
"stare decisis" precedents, or
can respond with novelty in solving a
pressing contemporary
fact situation.
The justices may go with "implied
power," a la the first Chief Justice John Marshall, or be literalists
& absolutists, a la Hugo Black
and (perhaps) today's Antoine Scalia.
The holy
U.S. Constitution is very much interpreted and re-interpreted
by nine politically-appointed
gods & goddesses.
It is "holy," because there could be
anarchy if the populace lost
adherence and respect.
No bar association is pulling my chain. I am a law school dropout.
These are merely my perceptions
and philosophical meanders.
A political leader understands
the apparent necessity of the
people believing in the sanctity,
fairness & decency & inherent justicfe of the Constitution and
legal system.
Sausage-making and law-making
and law-interpreting and law-administering are not necessarily totally
appetizing in
the ordinary real world.
The Constitution is subjectivistically interpreted; and is
relativistic to ad
hoc situations
in the dynamics of the evolving needs & demands of the times
via cases bucked
to courts.
In our civilization, we the public ought not be hostile towards
courts nor despise laws
nor feel alienated.
I perceive our society's existence is fragile, contradictory, complex,
and
confusing.
I consider myself a pragmatist,
utilitarian, eclecticist, and moderate.
Somehow our executives, legislators
and judges must respond to our
society's injustices, complexities & contradictions.
Judges may be political appointees or may be chosen by direct
popular vote.
Judges (& juries & cops) are human beings
steeped & inculcated in the folkways, mores, traditions, customs and
taboos of
the informal prevailing social culture and sub-culture(s),
There is a good ole boy
legal fraternity aspect
in the reality, as there are in
other professions and trades.
The USA is legalistically-driven.
Justices in black robes are
priests of our secular laws.
There is "legal
fiction," and the device's implication may be
relevant to this essay
To sum up myself: laws are sacred
secular
necessary contrivances
.
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| User: "Robert Cohen" |
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| Title: Re: NYT OP ED: 25 Questions for Judge Roberts |
14 Sep 2005 05:41:45 AM |
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More gibberish from primate's overly-pounded keyboard:
Search Result 3
From: RobtCohen (robtco...@aol.com)
Subject: Re: U.S. Constitution, unconstitutional?
View: Complete Thread (6 articles)
Original Format
Newsgroups: alt.philosophy
Date: 2000-11-18 08:15:05 PST
Peruse a WORLD BOOK or BRITANNICA ON-LINE under "Supreme Court" for
the famous
landmark watermark precedent setting controversial cases.
Imho:
I agree with an implication of the originating poster's question that
the
Supreme Court reflects political opinion.
The Supreme Court is adaptive. It reflects folkways, mores, customs,
traditions, and taboos. It certainly does consist inherently of "
political
appointees." How could it be otherwise?
We are a nation odf law: However, the law is interpreted and
administered by
human beings.
"The Constitution is what the Supreme Court says it is.," says
Justice Oliver Wendell Holmes circa early 20th century.
The "IMPLIED power of judicial review" is Constitutional, says (an
early)
Chief Justice John Marshal in Marbury v. Madison. The "I" word
challenges the literalism & absolutism &
"strict constructionism" argumentation, doesn't it?
What is "strict constructionism?"
Imho: The phrase is utilized as a political catch-phrase signal of
reactionism
generally against some abhorred "liberalistic" & "socialistic" rulings
particularly since
The New Deal, particularly including the Earl Warren Supreme Court.
President Eisenhower appointment of the Californian Warren became so
hated
that there were billboards, "IMPEACH EARL WARREN," apparently sponsored
by the
John Birch etal Rightist political groups.
President Eisenhower did comment that his Warren appointment was a
regret.
Here is a complex historical nuance-irony:
Warren was criticized as being ...uh..."fascistic"
during World War II for being the Calif Atty-General encouraging or
gung-ho for
re-location camps for Japanese-Americans.
Perhaps the moderate Ike apparently did not think of Warren as being
judicially
liberalistic.
Anyhow, the hated-by-Conservatives/loved-by-Liberals WARREN COURT is
most
prominent in my own childhood memory
Y'all can have your boring RHENQUIST .COURT.
..
Here is a foggy understanding: Please correct me if I am getting this
perception fouled-up:
In the mid-later 19th Century, the Supreme Court was considered quite
pro-federal regulation, apparently in order for big business to
flourish &
railroads to get built.
Some individual States wanted to be more regulatory, but the TENTH
AMENDMENT
was not emphasized by the then Anti States Rights Supreme Court. The
rationale
of
regulating "interstate commerce"
was their favorite clause.
Later the "packed" (attempted) New Deal liberalistric-socialistic
Court
also used the INTERSTATE COMMERCE CLAUSE as rationale.
So, what is Constitutional literalism and absolutism?
In interpreting & applying the Constitution:
Are the justices mechanics or artists?
Both. Their function is a subjective joint construction of ...
legalisms. I
luv/hate the phrase "legal fiction."
No wonder lawyers drink.
Are the justices our secular "gods" and "goddesses?"
Yeah. That's what I am suggesting
here in this philosophy news group for your consideration.
Are the justices "objective" or
"subjective?"
I am a subjectivist & relativist. I can't
accept "objectivism."
"Facts" are words. Words are derived from culture. Words connote
(and denote) meanings.
Well, anyhow, I perceive "facts" as frequently being at least
partly culturally-based & biased & perceived con-structs.
OK, ok, ok: two plus two equals four.
Maybe Ayn Rand's FOUNTAINHEAD isn't a subjective portrayal of realty.
Maybe
OBJECTIVISM exists. Maybe the Supreme Court Justices are
human objectivists.
Was the infamous Dredd Scott
decision about the fugitive slave as property by Chief Justice Roger
Tanney a
good Supreme Court decision?
Well, this is (partly) why there was a War Between The States. It was
in all
the newspapers. Some Constitutional Amendments (11th, 12th, 13th, 14th)
were
consequently passed.
YES, our tragic CIVIL WAR was about "economics" too. The phrase
"political
economy" is a fine ole
descriptive phrase about reality. Don't fall into the trap of excluding
at least both of the cliche reasons-for-the-Civil War: Moral
compunction about
slavery AND the dynamics of economics. Human motivation is not a mutual
exclusive.
Here is a classic example of how the Supreme Court
changes its interpretation:
Plessey v. Ferguson, circa 1890, "separate (railroad facilities) but
equal is
Constitutional,"
then overturned by Brown v. Board, 1954, "separate (school facilities)
but
equal is inherently unConstitutional."
Imho: The Supreme Court does reflect our complex history, anthropology,
and
culture. As culture evolves-devolves, the Court
adapts-maladapts because it is in every denotation & connotation of the
term
a "political" phenomenon..
It is important for the stability and survival of us all that we the
people
should respect and regard the Supreme Court as our "holy secular"
authority. No
major party politico or judge or stranger-seatmate on the Air Tran-
Greyhound
Bus would tell you this, but I just did.
I am no radical nor anarchist. I may be something of a cynic in my
analyses. I now acknowledge that I may be considered as chickensh_t
prude &
fearful conservative in fear of anarchy. I am aspiring to be
neoliberal,
utilitarian, pragmatic and realistic.
When a Pres candidate G.W. promises he's going to appoint more "strict
constructionist" Scalia's and Thomas' to the Supreme Court, the above
ideas
begin re- floating from a course of Constitutional Law and also a
course in
judicial procedures philosophy 30 years ago; and so thus I thank the
reader for
indulging this prolonged ramble.
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