Redstate

I admit that. Doesn't mean I'm too late to make a difference.

Roger Allan

You will keep hearing it over and over and over and over until the problem is fixed. Rehashed doesn't mean wrong.

Roger Allan

The dems won't and neither will the GOP...why I am not an independent.

Roger Allan

Roger Allan

The raid on the Branch Davidian compound was every bit as egregious, and in the end was even more of a tragedy, with children, women, and men murdered under the color of government authority. As of now, lives are only being ruined and not ended. The early news coverage of the FLDS raid was full of salivating reports that things could end up 'like Waco'. Yeah, they were hoping (great ratings)!

While I don't agree with many of the FLDS religious practices, I am more than a little concerned about what will happen when it's my group or family that's on the receiving end of that government aggression. We're two for two now. Don't think it'll happen again?

The Democrats having even less respect for individual rights is no justification for tolerating it among elected Republicans. Over the last seven years, as I've watched the changes happen, I've always thought I couldn't leave the party because I had nowhere else to go. It's becoming more and more evident to me that that justification is about worthless by now.

disagreements with the MAIN provisions of the Patriot Act, you mean that such disagreements are well grounded.

What I am sure of is that Bush, like presidents from Washington-Clinton, are doing MUCHHHHH more than any patriot act to protect us. thank god the NYT has only leaked the little they discovered.

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Unlike most of the Congress, I actually read every single page of it my freshman year of college (this is what you do in college on weekday nights-get around with your libertarian friends and read the Patriot Act) and it is basically an excuse for the government to designate a terrorist group anyone they want to, and consequentially take away those people's rights. We don't need any underhanded expansions of government to fight terror-we need competent administrations and a willingness to listen and hit hard when we want. A warrant is not difficult to obtain-warrantless wiretapping and illegally detaining citizens for interrogation undermines American exceptionalism when we are willing to reduce our democracy under the guise of preserving it.

End the NewTone. Punch the hippies.

I disagree with you about FISA approved warrants etc. etc. to listen to our nation's enemies after these same enemies have declared war on US and attacked us. If a Pres. has enough authority to kill the enemy I reckon he has enough authority to listen to them as well.


The purpose of communist propaganda was not to persuade or convince, nor to inform, but to humiliate; and therefore, the less it corresponded to reality the better.
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The deal: presidents do so much more than is publicly known

so that, the debate over the act is actually quite puny

presidents are going to protect the country, if they have character, since they take an oath to do so

we have regularly killed enemy spies in the US since 1789

What we don't do is use war intell to charge people with crimes. see 4th amendment (but even then, see the word "reasonable", a word not used anywhere else in the constitution - THIS IS KEY)

BR, we would never have been exceptional if we did not do these things.

more later

ps

you were reading trees
see forest! (e.g. fdr reading mail, clinton and ames/echelon, and father of Country hanging traitors)

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But I would argue FDR was a tyrant (as would many others)and there were many many flaws with our country's views on American citizens, heh. Certainly we are not exceptional if we do not vanquish terror-I question if the methods that we use to defend liberty are not undermining the very liberty we seek to defend. GC, I'm not saying the black helicopters are coming for me, nor am I claiming the government is listening to every phone call. I'm just saying that illegal ie warrantless searches and seizures on American citizens property which are actually no longer illegal under Patriot Act as well as warrantless wiretapping seems to be overreaching executive power and an overreach of the state. A warrant is not a difficult thing to obtain with reasonable suspicion-you as a lawyer certainly know that.

End the NewTone. Punch the hippies.

understood this, and the fact that responsibility for same could not be divided. They put this power in one man. That man can be impeached if he over-reaches.

This is why character matters so much in a President and not so much in congress, who's actions are written laws we can all read.

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opposing general needs to do is conduct a conference call to one number in the US, and the US government is prohibited from listening in?

What you are saying means that in the modern era, we cannot monitor phone lines outside the US in the context of a war.

destination. We encounter storm squalls along the way. Sometimes we hit a sandbar. We often squabble amongst ourselves as to the appropriate direction. But, if you abandon ship and swim away on a life preserver into the great sea alone, you're chances of being seen and heard are close to nil. There are a great many things I don't like about the R party right now, but revolution in changing it is only possible if enough people stay with it and fight the good fight. Political correctness is on its way out, and this is a unique time to be a Republican. We have to be the change we seek in our party. Sorry I jipped your line Dalai Lama.
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This is not an FLDS issue or a Patriot Act issue specifically. They are small parts of a bigger picture and that is the destruction of the Constitution.

Roger Allan

Sounds like the classic liberal response of I know more than you because I have all these fancy degrees that says I do. Not to plug my own diary, but I just wrote a diary on resaving conservative principles-check it out it touches on some of the things you were talking about here.

End the NewTone. Punch the hippies.

When I was in my twenties, I thought I knew it all too. By the time I was in my forties, I realized how little I knew in my twenties. Makes me wonder how much I still don't know.

Fancy degrees don't necessarily mean someone knows more than you. But I respect the fact that the profession of constitutional judge demands decades of education and preparation, no less than a heart surgeon or an airline pilot.

I would not trust my heart or my life to someone who got their medical education or flight training from Google. Neither will I trust the interpretation of the Constitution to someone whose information and analysis comes from the internet.

Roberts, Alito, Scalia, Thomas, and the rest of the justices are smart people. They have dedicated their entire adult lives to studying and understanding the Constitution, and have risen to the top of their peers in their performance as judges. If the Patriot Act is unconstitional, I trust them to figure it out.

Respect for the proven institutions and traditions of government and society is a bedrock principle of conservatism. There is nothing liberal about that.

"If all men were just, there would be no need of valor."
- Agesilaus

That is, they got appointed by politicians.

The Constitution was written by We the People in English and there is not even a requirement that justices be lawyers, nor should there be.

more later, if required

I am a lawyer. I am no more qualified to understand what "is" is than any other English speaker.

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You TRUST the Supreme Court?! That's why we have so many problems with the court. People blindly trust and accept what they say as absolute truth. This is the whole problem with the entire legal system.

Education in law is not even remotely comparable to training as a surgeon. Today, in most universities, it makes things WORSE. Learning about cases that were decided and opinions that were written, students learn to rely more on what people said about the Constitution than what it says itself. Do you know the kind of people who usually teach law schools today?! Do you know what they are teaching and what the learning environment is in these places?

Do you know how judges and justices arrive at their rulings? Have you read them? Have you seen or heard the words from the justices themselves that show they are anything BUT trustworthy? Their clerks do most of the work for them anyway. And if you've ever read the letters of Blackmun clerk Molly Mcusic, you would lose a lot of your misplaced respect for the Supreme Court.

I trust the federal judiciary about as much as I do Hillary Clinton. To do otherwise would be foolish. At this point, I would feel better with the current Congress deciding cases than I would with the current federal courts. I think juries would be better prepared to deal with federal court decisions than the judiciary.

Anyway, thinking like Ed54's is why judges have been taking over and ruling the nation on their own for the past 50 years. People simply accept it. There is no accountability whatsoever. If the Supreme Court said the Constitution demanded people jump off bridges, they'd ask "how high."

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I dunno about anybody else, but as far as the Supreme Court goes for me, it's not so much a matter of trust as a matter of necessity. I don't believe that we've had any President stand up to them since Jackson. I could be wrong.

Anyway, it's kind of like Bill Klem the legendary umpire said, "Some is balls and some is strikes, but they ain't nothin' until I says so."

Once the Court rules, It Is So.

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

It is only "so" because the people and othe branches of government want to bow down to it and believe it. If I were an elected official, there are times I would not hesitate to defy the Supreme Court and its precedents.

Flummery, Sir!

Your inconsequential exception only proves the rule!

(^.^) Rex Stout has been gone too long.

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

I guess there is a misunderstanding. Maybe I'm just not getting what you mean by "so."

A legal appellate case can go to no higher court than the Supreme, However if by it you mean more than the appellate case. If you mean an issue. I would say that on an issue the Supreme Court does not have the final word. In addition to Andrew Jackson Abraham Lincoln also stood up to the SC.


The purpose of communist propaganda was not to persuade or convince, nor to inform, but to humiliate; and therefore, the less it corresponded to reality the better.
Dr. Theodore Dalrymple

Many cases often are issues. Any time precedent is applicable, by my defintion, it becomes an issue rather than a case.

Still, it depends on what you mean by "so."

In one sense, court rulings depend on enforcement of some type to be "so." If the enforcement does not take place, be it by executive order or refusal of any officer to comply, it is not "so."

In the only other sense I can think of, the judiciary writes opinions, not facts. Nothing they say is really "so" without evidence. That gets back to my original point. That someone in power says something does not make it truthful.

I don't recall the Lincoln example--can you enlighten me? Twice in 200 years means it's "pretty much" final.

Of course, what is often left out, is that Congress has certain powers to assign the jurisdiction of issues to certain courts or to remove them from judicial review altogether (IIRC).

Also, there is the truly "final" step of Constitutional amendment to nullify the SC objection to any law. But if the SC, Congress, and the President all agree, the only recourse the people have is at the ballot box or on talk radio (^.^).

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

Just 2 examples of times Lincoln went against the Supremes. He did what he thought was necessary to preserve the US.


The purpose of communist propaganda was not to persuade or convince, nor to inform, but to humiliate; and therefore, the less it corresponded to reality the better.
Dr. Theodore Dalrymple

Thanks. But what SC decisions did he defy? Article 1, Setion 9, Clause 2 of the Constitution provides for the suspension of habeas corpus in times like the Civil War. And the EP essentially said that slaves in the rebellious states were to be treated as free men, with protection to be given by the military if necessary.

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

I am a history buff, and I always had the impression that there was no clear cut authority for Lincoln to issue EP. He even waited until after a Union victory in battle to be in a stronger position to do it. YMMV


The purpose of communist propaganda was not to persuade or convince, nor to inform, but to humiliate; and therefore, the less it corresponded to reality the better.
Dr. Theodore Dalrymple

Question: Could one make the argument that Lincoln even defied a decision of the Supreme Court? Given that this seems unimaginable to us now, how is it that Lincoln managed to do this? Was this the only time in U.S. history that the president has taken this sort of liberty?

Farber: In the early days of the war, Lincoln suspended habeas corpus because of the threat that rebellion in Maryland would cut Washington off from the rest of the country. Chief Justice Taney (who was acting independently of the rest of the Supreme Court) said that only Congress could suspend habeas (though Congress wasn't in session), and ordered Lincoln to release one of the prisoners. Lincoln's refusal is probably unique in American history. There's a possible technical legal defense of Lincoln's refusal, which I discuss in the book. More fundamentally, though, Lincoln's position was that suspending habeas corpus was essential to the survival of the country. This argument that circumstances justified disobeying the judiciary sounds radical but it was actually quite limited—Lincoln pointed to the extreme threat to the nation posed by secession, and he also made it clear that he was ready to answer for any violations of the law if Congress didn't back him up.

http://www.press.uchicago.edu/Misc/Chicago/237931in.html

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At different times in American history, Presidents have given different answers. Perhaps the best-known statement of Presidential independence in matters of constitutional interpretation was given by President Abraham Lincoln in his First Inaugural. Echoing a position that had previously been espoused by Thomas Jefferson and others, Lincoln contended that decisions of the Supreme Court on constitutional matters are binding on the parties in the case before the Court, but not on co-equal constitutional actors such as the President and Congress. Accordingly, and having in mind the infamous 1856 Dred Scott case, Lincoln indicated that Congress and the President were free to disregard a Supreme Court decision in cases that involve different parties.

By contrast, the Supreme Court has taken a more expansive view of its own power, and a narrower view of the power of the political branches in matters of constitutional interpretation. In Cooper v. Aaron, a 1958 decision involving the desegregation of the Little Rock, Arkansas public schools, the Court announced that the duty of elected officials to respect the Constitution amounted to a duty that those officials respect the Supreme Court's interpretation of the Constitution. The Court seemed to allow no room for independent constitutional interpretation by elected officials.

http://writ.news.findlaw.com/dorf/20050214.html

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If that is what Cooper v Aaron said (I haven't read it), then it is a bold-faced LIE! Anyone who says that defying the Supreme Court is equal to defying the Constitution is speaking in ignorance or lying. It took an arrogant little bunch of tyrants to say something like that.

Although what Arkansas was doing was also cruel, it is not the court's job to enforce the law or the Constitution. Attempts to do so ought to take a judge off the bench so fast it would make his or her head spin. And that goes for all the Cooper judges.

Menlo

I did not spend a whole lot of time on reading them, but I'd suggest that you read Federalist 47 about what the founders thought about the power of one branch of our government over another.

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Mayer: Slavery was very troublesome in early American history. American courts generally followed the lead set by English courts, especially the great English judge Lord Mansfield. In a famous decision, called Somersett's case (1772), he recognized that slavery was contrary to natural law, that it is a violation of human beings' natural rights to be placed under the control of someone else. Nevertheless, he also recognized that slavery can exist if positive law allows it to exist, if man-made law permits it. That is the way that the English courts split the difference. Abolitionist arguments said that slavery was illegitimate and that positive law must always be subordinate to natural law. The slaveholders held slaves to be a legitimate form of property. American courts tended to follow the compromise position, but that raised very troublesome issues about the status of slavery in unorganized territory, that is, federal territory not yet organized into states. That is another area where Lincoln parted company with the Supreme Court—over the Dred Scott case. Chief Justice Taney, writing for the Supreme Court, said Congress cannot ban slavery from the territories without violating the Fifth Amendment property rights of slave owners in slave-holding states. Lincoln took the view that the Court's decision was wrong and that it was not binding on the other branches of government. Of course, that was one reason some Southerners viewed Lincoln's election as president as a threat, if not to their right to hold slaves in the states where they resided, then to their rights to be slaveholders should they emigrate to the western territory.

http://www.objectivistcenter.org/cth--457-David_Mayer_Puts_Lincoln_Trial...

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All great references, including those above. Thanks.

I understand it was also pointed out that the EP applied only to the rebelling states and that it was primarily a directive to the armies, which Lincoln could do as a result of his position as CinC. It cleared up treatment of "liberated" slaves. Some Generals were already freeing them against orders from DC. Others were treating them as captured contraband.

If one takes the "contraband" tack, it can be argued that they became property of the US Army, and therefore the President had the authority to dispose of them (free them) as he wished. That may offend some sensibilities, but it got the job done.

Lots of things get broken or bent during a war.

I'm just now listing to Pearl Django's album, Avalon. Outstanding. I highly recommend it to anybody who likes Gypsy Swing or who just appreciates good music.

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

More to the point, I trust the system of checks and balances they are a part of, and which has functioned very well for 220 years so far. I trust that system a lot more than I trust a bunch of chicken littles who studied law at the University of Google.

"If all men were just, there would be no need of valor."
- Agesilaus

Of course I don't expect the court worshippers to change. That is one thing I should have pointed out. Other than the fact that people such as yourself and other branches of government blindly (and more so now than ever) accept it, there are no checks and balances. The court has given itself the authority over the other branches.

Anyway, the court has certainly NOT functioned very well for 220 years. Neither has "the system," but that's another issue.

Melo

The courts may have their problems, but it's what we got, and it's served this country pretty well for over 200 years.

The simple question without a snark is what would you replace it with?

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coupled with some restraining activities by Congress and the President, such as pooling certain activities from outside judicial review by the SC (something the constitution expressly provides for).

Nobody here is advocating for the disempowerment of the SC. What we are saying is, why do you trust the SC in a way that you don't trust the President and/or Congress.

All three branches suffer from human weaknesses and require checks and balances. Courts under Article III are the most insulated, and may in fact be overinsulated.

Maybe you should more skeptical of the courts rather than less?

If you could see what goes in chambers you might have a different level of confidence.

Bottom Line: Don't want to replace it. We want to make it work better, i.e. the way that the Founders intended.

JS

I'm not sure how or what you talking about with "pooling certain activities from outside judicial review".

Can you give me an example please because I don't know how what you propose would work given my understanding of the Constitution (not all that great).

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The jurisdiction of the Supreme Court can be set by Congress. This power is expressly provided for in the Constitution. Other comments to this diary have mentioned it.

JS

I think the Supremes see it differently, and I'm not sure where that power for the Congress is spelled out in the Constitution. It would be one heck of a battle though.

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Article III, Section 2, Paragraph 2:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases (that is, other than ambassadors, consuls, etc.) before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Article I, Section 8.

"The Congress shall have power.... To constitute tribunals inferior to the Supreme Court"

Both of these clauses have been exercised recently. The FISA Courts were no doubt created under Article I, and Article III was used to restrict the power of the courts to review something quite recently. I don't remember what, and I'm not sure if the courts complied or ignored the law and the Constitution.

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

I disagree strongly that it has served the country pretty well.

It doesn't work anymore, and radical reform is needed for the Constitution to be of any relevance or effect. Any means of improvement would require either a Constitutional amendment or actions that would be extremely unpopular with too many people.

If too many people do not agree on whether or how some part of the Constitution apply to today's legal and political problems, then I believe that part is de facto null and void as applied to the problem or case.

With a Constitutional amendment, the most honest solution that would not cause Civil War II would be for people to elect the judges. As long as people want them to act as legislators and as they do, they might as well at least be elected like them.

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We actually do vote for our Supreme Court judges out here in California. Matter of fact we voted out Chief Justice Rose Bird back in the 80's over her position on the death penalty. The people of the state support it, Rose Bird did not, under any circumstances of crime.

A law to make the office of Supreme Court Justice term fixed and subject to a vote after some period of time, I like that. Maybe double the term of a Senator. Can we also apply that to all judges?

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I do like the idea of limited terms capable of being renewed. Similar to how Federal Magistrate Judges and Bankruptcy Judges (non-Article III judges) are appointed.

Article III Section 1

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."

I wonder what the Federalist papers say about life time appointments? To a layman like me, we have to pay them while in office, not keep them in office forever.

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Federalist 78

The judiciary is weak. It is always in danger of being overpowered or influenced by the legislature or executive. A lifetime appointment makes it more firm and independent. Therefore, it is indispensable. And it is important to public justice and public security.

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amendment like you and menlo suggest or one that allows congress to overturn opinions my majority vote. He doubts congress would do it very often but that the threat would concentrate the monds of justices that their credibility depends upon opnions that are supportable by the constitution.

I think the better answer would be for governors and presidents to defy ONE opinion every decade or so. That would let justices know they are not unaccountable.

The best examples of caes where governors should do this are when courts DEMAND that a state raise taxes to pay for something. They should be defied.

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game

It's a pretty slippery slope when you advocate for "no longer applies". If you can say that about one part, what protects the other parts that you might like? It's the same slippery slope that I thought you didn't like because of the old "Living Constitution" argument.

I would probably support a constitutional amendment however, which is the will of the people.

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I don't want judges to re-write the constitution.

I want to change it the way the document provides, via the amendment process.

Jefferson noted early on that the judiciary threatened to become a ruling oligarchy rather than the supposed weak branch envisioned by Madison et al in federalist 78.

The executive branch was perceived as too strong after 4 fdr terms and so we amended to limit pres to 2 terms (I don't like that one, but...)

Given that the court is not weak, the original reason for lifetime terms is moot.

Hence, I am open to changes.

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"One man with courage makes a majority." - Andrew Jackson

We do it in Texas, and we do it for all judges for our jurisdictions. I think that too would be essential in a federal judicial election. It might be tough to figure out how exactly to count votes for Supreme Court justices, especially if you put circuits and districts into the mix.

Unfortunately, it would require a Constitutional amendment; so this will not happen in our lifetimes.

that violate their oath to uphold the Constitution and when President's defer to the court rather than uphold their oath. Congress and Presidents have found it politically expedient to rail at the courts and run on the issue rather than exercise courage.

The system depends upon men at some level with courage, and it really depends on judges that will exercise judicial restraint, i.e. character.

Read Bork's Slouching and Temptation books.

He did more than google

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...and you will suddenly lose the privilege of whining to the rest of us about how the big, bad Patriot Act is turning us all into Mr. Roboto. We clear on that, neighbor?

Oh, yes: Reply To This is your friend. If you're responding too quickly to do it every time, slow down. Thanks in advance!

The Fuzzy Puppy of the VRWC. I've been usurped!

My apologies if I have offended the "powers that be". I just get a little hot under the collar with people that equate education or position in government with the right to have an opinion or have that opinion count.

By the way, I have seen many others use the sheep reference here and other stereotypes like it, does the fact that you seem to disagree with my analysis of the Patriot Act have anything to do with your threat to ban me?

Roger Allan

:thumbing on safety: But you did more or less apologize, so you can go back to what you were doing.

The Fuzzy Puppy of the VRWC. I've been usurped!

Just trying to get my point across.

Roger Allan

As a conservative, I have respect for the insitutions and traditions of our society and government. I spent the last 20 years supporting and defending the Constitution in the military. I respect ALL of the Constitution, including the parts where it establishes the judiciary branch of government. I also respect the common law tradition and precedent of judicial review.

Yes, you are entitled to your opinion. We all are. But most of us have enough sense to recognize that our opinions are not particularly well informed, especially on issues as complex as constitutional law. Thus we take a mature approach of trusting our tried and proven institutions to function properly over time. Other people? Well, I suppose they join the Paultards and hyperventilate about the sky falling and the constitution in peril, as if it hasn't been in peril for 200+ years.

"If all men were just, there would be no need of valor."
- Agesilaus

is supported by the Constitution.

Viewing criticism or skepticism of the court system as somehoe not respecting the Constitution is contrary to the views of the Founders, who wanted each brance subject to skepticism, and subject to checks and balances.

Blind belief in any institution is not trust, it is foolishness.

Courts are not above criticism. When they become so, our Constitutional form of government is over.

given your line of argument.

People who don' worship at the alter of the Supreme Court are sheep?

they call this a "Goodbye Cruel World" diary. They are generally mocked. I appreciate that system.

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who distract the site from its mission in this critical election year with theatrical diversions. Whether you are one of them, time will tell. The tenor of this blog looks promising.

Just a couple of quick points...

1. You're dumb as a rock.
2. You haven't a flipping clue how to go about affecting change.

You've got your panties in a wad over the destruction of the Constitution and leave one of the two major parties who have the ability to actually get something done. You don't eve bother to align yourself with the Libertarian Party or the nutcases in the Constitution Party.

Hope you enjoy playing with by yourself. Please don't let the door hit you on the way out and don't bother dropping by to lecture us. Try Kos.
____
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Both parties have had their chance and they have failed miserably. Change is going to have to be grass roots and that won't happen in the business as usual system we have now. If the GOP wanted to effect change, they wouldn't have nominated John McCain. I'm voting for him only because he is not Barack Obama

Roger Allan

The man's voting for McCain; he doesn't have to be any happier about it than I am.

The Fuzzy Puppy of the VRWC. I've been usurped!

Maybe I am dumb as a rock, but if someone as stupid as I am can see this problem then a smart guy like you shouldn't be having a problem.

By the way, what party did the signers of the Declaration of Independence belong to? Careful, it's a trick question!

Roger Allan

A Truly Multicultural
Message for Obama!

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"One man with courage makes a majority." - Andrew Jackson

Choose to disagree with the issues, but support the party that is closest to your ideology even if it isn't a great fit. You pick from the best available.

Socialism doesn't work. It looks nice on paper, but it's been tried and it's failed miserably every time (usually accompanied by widespread death and suffering).
Proud member of the V.R.W.C.