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Re: Welcome back, unhinged left!

Postby Dave.gillam on Tue Jan 26, 2010 9:28 am

VictorK wrote:But what are the founding principles? What does it mean to uphold them? This is not a good definition of a term that is loaded by conservatives with a negative stigma. It reduces, ultimately, to 'this is a decision we disagree with, therefore it is activist'. It is a subjective definition that distracts from the fundamental arguments by quibbling over whether the court was 'activist' or not. I propose an objective, pragmatic definition that focuses on whether or not the Court /should/ have been activist, that is focusing on the court's ruling and the principles behind it, free of any stigma.

Your "objective" definition amounts simply to what you accuse others of; "I disagree so its activism". Founder's intent, given the federalist papers (most famously) and the volumes of other documentation written during debate and creating of the constitution, is probably one of the most documented subjects of the time.
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Re: Welcome back, unhinged left!

Postby VictorK on Tue Jan 26, 2010 10:07 am

Dave.gillam wrote:Your "objective" definition amounts simply to what you accuse others of; "I disagree so its activism".


No, no no. My definition of activism is when the court acts to overturn the actions of elected government. It's you and Carson who have attached the meaning that activism automatically means illegitimate.
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Re: Welcome back, unhinged left!

Postby Casual Notice on Tue Jan 26, 2010 11:46 am

I think I'll stick with my definition. An Activist judge is willing to overthrow legal precedent (that is to say, previous rulings by American courts). Whether or not their decisions invalidate laws is immaterial, since the only law they are enjoined to obey is the law of the land as defined by the US Constitution.

That being said, while I think the decision is sound, I think they over-reached the scope of the trial in the decision brief. Most notably, I think they erred in equating the spending of money with speech. Money is influential, but making political donations is no more free speech than donating to a webcomic is comedic expression.
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Re: Welcome back, unhinged left!

Postby VictorK on Tue Jan 26, 2010 11:52 am

Casual Notice wrote:Money is influential, but making political donations is no more free speech than donating to a webcomic is comedic expression.


Take it up with Buckley v. Valeo, not Citizens United.
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Re: Welcome back, unhinged left!

Postby Dave.gillam on Tue Jan 26, 2010 12:49 pm

VictorK wrote:
Dave.gillam wrote:Your "objective" definition amounts simply to what you accuse others of; "I disagree so its activism".


No, no no. My definition of activism is when the court acts to overturn the actions of elected government. It's you and Carson who have attached the meaning that activism automatically means illegitimate.

So you say again that for the court to do is constitutionally appointed job is "activism".
I'll stick with CN's definition.
An Activist judge is willing to overthrow legal precedent (that is to say, previous rulings by American courts).
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Re: Welcome back, unhinged left!

Postby VictorK on Tue Jan 26, 2010 1:52 pm

Dave.gillam wrote:So you say again that for the court to do is constitutionally appointed job is "activism".


So the Court overruling its own precedent is outside of its constitutionally appointed job, but overruling acts of government is not?

Look, the whole point of my definition is to say that activism /is/ part of the court's constitutionally appointed job.
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Re: Welcome back, unhinged left!

Postby JP on Sat Jan 30, 2010 11:21 pm

the Court is to determine the constitutionality of laws. Overturning a law for being unconstitutional is not activism. Determining policy or law not in the Constitution is activism (Roe v. Wade is such, That is why it can, and should be over turned....not because I think Abortion should be abolished, but because as the COTUS states States have the right to determine such. An overturn is likely not to change abortion laws in many states) and overturning a bad SCOTUS ruling is also not activism.
Kelo is another case of activism that needs a ruling overturned. Eminent Domain was not for land grabs (Hedly Lamarr not withstanding) so the gov't could then sell the land to someone who promises more taxes. I find it rather fitting the Kelo land grab is generating less tax for the gov't as it is currently a refuge for feral cats, and some rubble.
McCain/Fiengold was used on such "large" corporations as an Unsponsored NASCAR team who had a Political statement on their car, and many other private individuals.
Also, the NYTimes is railing against it when they are a Corporation who uses their product to Endorse Candidates. MSNBC as well as GE sure is a rather big Corp. No? yet they could fob off their Political Statements as "News and Opinion". Then there are the lies about Foreign money but 0bama had his credit card software set to allow foreign transactions, and likely got many non-USA donations. Yet there still is a law on the books that forbids those. Why did those never get investigated?
The left claims to be for Freedom of Speech yet they sure try to suppress any not supportive of them.
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Re: Welcome back, unhinged left!

Postby VictorK on Sun Jan 31, 2010 7:47 am

JP wrote:the Court is to determine the constitutionality of laws. Overturning a law for being unconstitutional is not activism.


Again, you start at the proposition that activism means illegitimate. That's what I'm trying to argue against.
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Re: Welcome back, unhinged left!

Postby carsonfire on Sun Jan 31, 2010 10:08 am

Perhaps you should use a different word, VK. It's conservatives who have used "activism" for years to describe *in particular* the attempt to make the constitution a "living document" free of historical context, etc. So your attempt to demand a different meaning in this conversation is somewhat Orwellian, even if you are just innocently insisting on what to you is a more proper definition. You're trying to eliminate the difference we refer to with the word, by taking the word away, and you're naturally meeting resistance.

In other words, your Lakoff is showing. ;)

By the way, forum note: you all surprised me in coming over and using the new forum so fast, so I have taken advantage of the situation and asked that my forums here -- Winger and Elf Life -- be locked. As far as I know, they should remain public and searchable, but that will help us make a clean break, instead of bouncing back and forth between the two.

Although Keenspot has offered to continue hosting forums, and I believe they will keep their word as they have continued hosting forums for other comics who have left Keenspot, I have a feeling that the coming change will prompt more and more member comics to set up their own forums elsewhere.
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Re: Welcome back, unhinged left!

Postby JP on Sun Jan 31, 2010 10:26 am

dammit. Keen ate my post.
VictorK wrote:Again, you start at the proposition that activism means illegitimate. That's what I'm trying to argue against.


And, as is typical, you are wrong.
a few "F'rinstences" for you.
Would you be fine with the SCOTUS deciding to ban Gays from Marriage and Civil Unions, it'd be Activist. Your fine with that? I'm not. (it is left to the states to decide as per the COTUS)
Would you be fine with them (SCOTUS) banning Gays from Military service? I'm not. (It is not the courts place to set such policy, though they can state it is not the province of the court to ban or to enforce serving by such, and kick it back to those who do get to decide. 0bama could do it with an executive order, btw. Much like Integrating the services was done)
Would you be fine with SCOTUS deciding that there can be no more Protesting within Washington DC (Imagine it under the Bush Admin for better effect) because as DC claimed in Heller it was an entity onto it's self and the COTUS did not apply in that case, it doesn't in in this either? I'm not (Code pink has every right to do so as do the Tea Party, War Vets, Million Man, etc.)
Would you be fine with SCOTUS declaring that All citizens own a firearm, and at least 5000 rounds of ammunition? While I'm very pro-gun ownership I'm not. (one of our rights is to not choose to execute all of our rights. I may choose not to protest. I can choose not to vote. I can choose not to print missives against the gov't {free press})

But by your claim that an Activist court is not bad leaves you open to just such situations.

Roe is exactly the same as the Court banning (well, more like deciding ALL states Have to have Gay Marriage), and it too needs to be overturned, as would the decision banning gays from marriage, as was a portion of the rulings overturned with this Right To Free Speech.


Those your side of the political spectrum are fighting with this ruling,(which is not activism, it determined it was an infringement of Free Speech) and Heller (which is not actually activism, as it determined the 2nd applies to all citizens) yet are fine with allowing the courts to change things, willy nilly, when it leaves you more open to losing rights they have no power to take from you.
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Re: Welcome back, unhinged left!

Postby VictorK on Sun Jan 31, 2010 11:23 am

carsonfire wrote:So your attempt to demand a different meaning in this conversation is somewhat Orwellian, even if you are just innocently insisting on what to you is a more proper definition.


Conservatives are the ones engaged in an Orwellian exercise, here. You've taken a term that has no objective meaning and wield it as if it's some fundamental principle of our democracy. You frame activism as the court stepping outside of its role, but the only evidence you offer for what that role is your own political philosophy. It is inherently Orwellian to take a political value and through manipulation of terms represent it as a vital systemic value. Everyone is afraid of being activist, but activist only means what conservative leaders decide it to mean in any given particular instant. A conservative judge doing exactly the same thing as a liberal judge in terms of the court's position towards precedent and the actions of elected government would not be activist. Do you not see why there's a problem with having such a term around? I'm trying to pin the term down and destigmatize it. We can debate whether or not it was appropriate to overturn an act of government or a precedent, we shouldn't take up all our time flinging accusations of activist all over the place.

JP wrote:Would you be fine with the SCOTUS deciding to ban Gays from Marriage and Civil Unions


I don't think the court could do that, since as you point out positive policy on that scale is almost the sole province of the legislature. However if the Court were to strike down a law permitting civil unions or gay marriage then it would be activist. Same with gays in the military.

Would you be fine with SCOTUS deciding that there can be no more Protesting within Washington DC (Imagine it under the Bush Admin for better effect) because as DC claimed in Heller it was an entity onto it's self and the COTUS did not apply in that case, it doesn't in in this either?


I'm not sure what this has to do with activism. It's really more of a question of where DC fits into the federal structure.

Would you be fine with SCOTUS declaring that All citizens own a firearm, and at least 5000 rounds of ammunition?


Again, I have no idea how the Court would even do that. There has never been even a suggestion that the Supreme Court has the power to take such steps. It's one thing to strike down a law, it's another to say that every citizen has to go out and do something. There has never been, and there never will be, a Supreme Court opinion or dissent to that effect. You have a strange notion of the power of the federal judiciary.

Roe is exactly the same as the Court banning (well, more like deciding ALL states Have to have Gay Marriage)


No it's not. I mean, isn't that just logically obvious? The Court can say that the states do not have the power to restrict some action, but it can never say that states are mandated to enact a law. I can think of no instance in the history of the Supreme Court where that was so. I suppose desegregation and busing comes close, but that was an order striking down a policy and setting the guidelines for what a law should do to be constitutional.

(which is not activism, it determined it was an infringement of Free Speech) and Heller (which is not actually activism, as it determined the 2nd applies to all citizens)


Both of the decisions were activist because they struck down laws enacted by the elected branches. Guess what? Roe was an activist decision too. Do you see the trap you've set for yourself here? You say that those two decisions were not activist because they struck down laws that interfered with a fundamental right, but guess what happened in Roe? You can't appeal to the plain text of the constitution to save you here, because the first amendment says nothing about corporations and money and the second amendment says nothing the right of individuals to own guns. Similarly the due process clause of the 14th Amendment has to be interpreted to reach Roe. By saying that one set of decisions is activist while the other is not, you're basically saying 'I agree with these case, therefore they are not activist' which is no standard at all. I can admit that all three are activist, recognize the similarities between them, and then proceed directly to constitutional interpretation without the stigma of 'activism' hanging over the discussion. You twist and turn to worm around a term that you have taken to mean 'illegitimate' and in the process your argument is destroyed. Just ditch it.
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Re: Welcome back, unhinged left!

Postby Dave.gillam on Sun Jan 31, 2010 5:52 pm

Ye Gods, where to start?:roll:

VictorK wrote:Conservatives are the ones engaged in an Orwellian exercise, here. You've taken a term that has no objective meaning and wield it as if it's some fundamental principle of our democracy. You frame activism as the court stepping outside of its role, but the only evidence you offer for what that role is your own political philosophy.
Apparently, you've never heard of Judicial Review. Its the court's JOB to determine what is a constitutional infringement and what isnt. And it is the purpose the SCOTUS was created for to over-rule any legislative or executive decisions that are inherently unconstitutional. You keep saying that its "activism" for the SC to do what it was constitutionally created to do. :roll:

VictorK wrote:
JP wrote:Would you be fine with the SCOTUS deciding to ban Gays from Marriage and Civil Unions

I don't think the court could do that, since as you point out positive policy on that scale is almost the sole province of the legislature. However if the Court were to strike down a law permitting civil unions or gay marriage then it would be activist. Same with gays in the military.
:lol: Again, its activism only if you disagree with it. Actually, the legislation ending slavery is a prime (and repeated) case of "positive policy" that the court dictated over legislation.
VictorK wrote:
Would you be fine with SCOTUS deciding that there can be no more Protesting within Washington DC (Imagine it under the Bush Admin for better effect) because as DC claimed in Heller it was an entity onto it's self and the COTUS did not apply in that case, it doesn't in in this either?
I'm not sure what this has to do with activism. It's really more of a question of where DC fits into the federal structure.[/quogte] As DC is specifically laid out in the constitution, and placed under the jurisdiction of itself and the Fed govt with no representation, this is a significant issue.

VictorK wrote:
Would you be fine with SCOTUS declaring that All citizens own a firearm, and at least 5000 rounds of ammunition?


Again, I have no idea how the Court would even do that. There has never been even a suggestion that the Supreme Court has the power to take such steps. It's one thing to strike down a law, it's another to say that every citizen has to go out and do something. There has never been, and there never will be, a Supreme Court opinion or dissent to that effect. You have a strange notion of the power of the federal judiciary.
That would fall under Brown versus Board of education. Maybe you've heard of it?

VictorK wrote:
Roe is exactly the same as the Court banning (well, more like deciding ALL states Have to have Gay Marriage)
No it's not. I mean, isn't that just logically obvious? The Court can say that the states do not have the power to restrict some action, but it can never say that states are mandated to enact a law. I can think of no instance in the history of the Supreme Court where that was so. I suppose desegregation and busing comes close, but that was an order striking down a policy and setting the guidelines for what a law should do to be constitutional.
Afirmative Action, Brown v BoE, The whole jurisdictional mess of DEA v California,
And you claim to have a History Degree? Pluss being a law student? Did you stay awake in any of your classes?

Both of the decisions were activist because they struck down laws enacted by the elected branches.
Which is precisely the job of SCOTUS, to strike down unconstitutional laws.

Roe was an activist decision too. Do you see the trap you've set for yourself here? You say that those two decisions were not activist because they struck down laws that interfered with a fundamental right, but guess what happened in Roe? You can't appeal to the plain text of the constitution to save you here, because the first amendment says nothing about corporations and money /quote]Except that traditionally, money=speech, as much as spoken word and print.

the second amendment says nothing the right of individuals to own guns
In your interpretation. Common Law back to the 12th century shows that the right to "self defense" allowed for keeping of weapons, and most territories made states before 1900 actually required that ALL able bodied males (of a specific age that varies from state to state) be part of the state militia, a different entity not allowed to be answerable to the Fed govt, which excludes the National Guard and Army reserves from being considered such.

Similarly the due process clause of the 14th Amendment has to be interpreted to reach Roe
Due process alternatively due process of law or the process that is due, is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state.
What "Legal right" allowed abortion, that the govt was infringing on, to apply "Due Process"?
Thats why RvW is activist; because the predicated "right" that was ruled on didnt exist. We had to fudge an interpretation to create an interpretation, to argue that there might exist a right that was being infringed.
On the other hand, Freedom of speech and right to bear arms are easily found. Hence we have clear rights, and its a question of if this law infringes on them. You could just as easily have applied Due Process to Fienstein-McCain.

you're basically saying 'I agree with these case, therefore they are not activist'
Yes, you are, even as you accuse us of it yet again
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Re: Welcome back, unhinged left!

Postby VictorK on Sun Jan 31, 2010 6:20 pm

Dave.gillam wrote:Apparently, you've never heard of Judicial Review. Its the court's JOB to determine what is a constitutional infringement and what isnt. And it is the purpose the SCOTUS was created for to over-rule any legislative or executive decisions that are inherently unconstitutional. You keep saying that its "activism" for the SC to do what it was constitutionally created to do.


Ok. This isn't hard. Really. It's not. Your statement only makes sense if activism is synonymous with illegitimate. I have rejected that definition. My point is that it's sometimes the Court's JOB to be activist. Get it out of your thick skull that I'm using activism in the same way that you do. I am NOT saying that activism is AT ALL illegitimate.

Understand?

Actually, the legislation ending slavery is a prime (and repeated) case of "positive policy" that the court dictated over legislation.


There's no Supreme Court case that said that slavery was unconstitutional prior to the Civil War. Indeed the opposite is true, the Court at the time was largely composed of Southerners who had tried and failed to end the slavery debate by overturning the Missouri Compromise in the infamous Dredd Scott decision. Slavery was ended in this country beginning with executive action in the Emancipation Proclamation and then the 13th Amendment. The Court did have any role in dictating the end of slavery or any positive (meaning that the court actually crafts a policy that goes into effect) steps towards that end.

Afirmative Action, Brown v BoE, The whole jurisdictional mess of DEA v California, And you claim to have a History Degree? Pluss being a law student? Did you stay awake in any of your classes?


Yes. I'm good at it. Let me show you why.
1. Affirmative Action is /statutory/. Specifically Section 717 of Title VII of the 1964 Civil Rights Act. The Court has never said 'you must impliment affirmative action', it has said 'laws mandating affirmative action are constitutional'. The Court is not being activist when it does so because it is /affirming/ an action of an elected branch of government.
2. Here's the thing about Brown. While Chief Justice Warren said that the situation was unconstitutional, he provided no remedy. He said that segregation should not continue, but did not outline a policy proposal that would have ended it.
3. The jurisdictional mess of the California Cannibis Cases (how's that for alliteration) is just the sort of the thing the Court has been doing since its inception, weighing the balance of federal and state power. Nothing really peculiar here.

Your and JP's arguments just show deep confusion. You don't understand how the Court works, you don't know its history, and you don't understand the judicial role. All you can say is "I disagree with this ruling, therefore it must be activist" and from there invent dire scenarios that have nothing to do with the court in practice.


What "Legal right" allowed abortion, that the govt was infringing on, to apply "Due Process"?
Thats why RvW is activist; because the predicated "right" that was ruled on didnt exist. We had to fudge an interpretation to create an interpretation, to argue that there might exist a right that was being infringed.


But you have to make the value judgment that the right to privacy, recognized to exist at the end of the 19th century (long before many of the rights that we traditionally associate with the Bill of Rights were said to exist) doesn't exist in the constitution. This isn't a question of activism it's a question of constitutional interpretation, which we always come back to. You're taking a term that has no meaning and pretending that it has a weighty impact on constitutional interpretation. Get rid of it. Adopt my definition and nothing really changes, you just lose a loaded and obnoxious word that you've used to browbeat the federal judiciary and legal scholars that you don't like into conformity.
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