Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 499423 times)

Crafty_Dog

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1450 on: October 31, 2018, 12:14:17 PM »
Not an easy question, but certainly a good case can be made against BC.

ccp

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Levin on the issue
« Reply #1451 on: October 31, 2018, 03:22:13 PM »
https://www.conservativereview.com/news/levin-and-horowitz-yes-trump-can-end-birthright-citizenship-for-children-of-illegal-immigrants-with-an-executive-order/

Graham 'today' now states that Kavanaugh and the 'caravan ' have galvanized the Republicans !

But Senator G, you are 20 yrs too late.
We now have 22 million illegals , probably more than this number

It is too late.  If the cans couldn't do anything for the last 2 yrs
then the issue is lost.
Only Trump who stands alone is actually really doing about this.

We don't need compromise we need enforcement .   In any case we can forget about compromise after Nov 6 anyway.........  game over.
unless the Republicans pull a hail Mary .

ccp

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Wait I thought the Constitution is a living and breathing document
« Reply #1452 on: October 31, 2018, 03:54:03 PM »
Speaking to Doug's point in previous post about leftists new found love for a literal interpretation of the Constitution when we speak of citizen birth rights, and not living and breathing when it is convenient for them :

https://www.spartareport.com/2018/10/14th-amendment-constitution-trump/




Crafty_Dog

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DougMacG

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Re: RBG
« Reply #1458 on: November 29, 2018, 04:13:49 AM »

https://www.motherjones.com/politics/2018/11/what-cult-ruth-bader-ginsburg-rbg-got-wrong-obama-trump/

I highly doubt it but maybe Justice Ginsburg believes in the collective wisdom of the American people even if it turns against the Left.  May her ideological bias on the Court leave with her when that time comes.

ccp

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1459 on: November 29, 2018, 07:24:58 AM »
The video  of the comedian and her exercising was poignant for me.
It reminded me of a very close aunt . 
she was a very ardent Democrat. 
she worked nearly every day
Even at the age of 86 she would show me her hard and toned biceps she would maintain by going to a fitness center,
She was inspirational when it came to exercise and she put the rest of us all into shame  :))

She always could not resist bringing up politics when we met.  We always disagreed but were able to do so without getting angry.

Ginsberg looks a lot like her. 
My aunt passed away 2 yrs ago apparently peacefully and rapidly at home at age 86.  She worked out till the day she passed............. :cry:


DougMacG

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American Creed, Constitutional Law, RBG with lung cancer
« Reply #1461 on: December 21, 2018, 11:02:31 AM »
https://www.cnbc.com/2018/12/21/supreme-court-justice-ruth-bader-ginsburg-85-reportedly-undergoes-lung-procedure-.html

Not a minor ailment though they certainly try to make it sound so.  They didn't tell us until the procedure (surgery) was over.  Let our ccp.md comment on this but as I understand it there are at least three types of lung cancer with varying speeds of growth.  My Dad who never smoked died of it.  They removed all of his too, at Mayo, but it came back.  Not being able to breathe is a horrible way to go.

I wish Justice Professor B-G the best personally and medically but look forward to the nation seeing a different constitutional viewpoint in her seat at some point in the future in that we are all mortal.

Crafty_Dog

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1462 on: December 21, 2018, 12:29:19 PM »
It might be best if she were to retire now to focus on her health.


ccp

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1464 on: December 31, 2018, 06:28:12 PM »
This seems a reasonable assessment from what I can tell:

https://www.nytimes.com/2018/12/21/health/ginsburg-cancer-lung.html

She could survive till 2020.  Not clear. 

OTOH say the findings from path reports are NOT promising - we won't know .  The MSM will certainly black out that news.

"oh that is an invasion of her privacy and is a violation of HIPAA...blah blah blah...."





DougMacG

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Constitutional Law: War against Catholics is really about Amy Coney Barrett
« Reply #1468 on: January 25, 2019, 08:22:15 AM »
The fight over Trump's third pick to the Court could easily dominate the 2020 Presidential election.

Sen. Kamala Harris practiced her anti-Catholic skills with an attack on Knights of Columbus in a Senate Judiciary hearing:
https://www.washingtontimes.com/news/2018/dec/30/kamala-harris-mazie-hirono-target-brian-buescher-k/
Ms. Harris asked Mr. Buescher, who became a member 25 years ago as a teenager, “Were you aware that the Knights of Columbus opposed a woman’s right to choose when you joined the organization?”

Sen. Hirono:  “If confirmed, do you intend to end your membership with this organization to avoid any appearance of bias?”

Next watch how quickly hate against the Covington Catholic kids went viral.  They wore red hats, they were Catholic and they were presumed to be bigots.

If you associate with hate groups like Christianity or Catholic ideas, be warned.  Hateful ideas like marriage being between and man and a woman, a child needs a mother and a father, and a human life is a life are viciously discriminatory hate thoughts now that Leftism is in and conservative Christians are out of favor.

Why the obsessive, sudden escalation of attacks now?  According to some, John Hinderaker at Powerlineblog for example, Amy Coney Barrett will be nominated to replace RBG on the Supreme Court.
https://www.powerlineblog.com/archives/2019/01/haters-wont-stop-with-the-jews-2.php

If they can go gang rape on Kavanaugh including a parade of non-witness witnesses, guess what's coming for Judge Amy.  Kavanaugh was picked to replace a moderate on the Court.  The next pick, it appears with Ginsburg missing work with lung cancer treatment, will be to replace a liberal with a conservative.  You think the Left went bonkers last time, you ain't seen nothing yet!

Paul Mirengoff also of Powerline says bring it on:
https://www.powerlineblog.com/archives/2019/01/a-battle-the-trump-administration-should-relish.php

Judge Barrett is the mother of seven children. Two of them were adopted from Haiti. Her youngest biological child has special needs. She is a remarkable and very sympathetic woman.

In addition, she is a first rate legal mind. Barrett graduated summa cum laude from the Notre Dame Law School, where she was executive editor of the Notre Dame Law Review. She then clerked for our friend Judge Laurence Silberman on the D.C. Circuit and for Justice Scalia on the Supreme Court.

As a law professor at Notre Dame, Barrett was twice named “distinguished professor of the year.” She continues to teach law as a sitting judge.

Do the Democrats really want to got after someone this sympathetic and this distinguished because she believes in the tenets of the Catholic faith? The answer seems to be yes. After all, they did it when Barrett’s nomination to the court of appeals was before the Senate.

But the Supreme Court is different. The public pays virtually no attention to battles over appeals court nominees. By contrast, as we saw with Brett Kavanaugh, fights over Supreme Court nominees rivet the nation.

Let’s say, hypothetically, that Judge Barrett is nominated to the Supreme Court in mid 2020, as the presidential race is heating up. Let’s hypothesize further that Senate Democrats try once again to savage Barrett because, as Sen. Feinstein once put it, Catholic dogma “lives loudly within” her.

Back to Hinderaker:  "They may be coming for Catholics today, but they will come for Protestants next."

DougMacG

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Re: So called Equal Rights Amendment, the fight for a genderless society
« Reply #1469 on: January 25, 2019, 08:28:34 AM »


https://thehill.com/regulation/court-battles/426126-new-momentum-for-womens-equal-rights-amendment?userid=188403

This is right, be warned.  Effort is also now in place to put a state ERA on the Minnesota ballot.

Deniers of gender differences are deniers of science.  As pointed out in the article, all gender discrimination against women is already illegal.

Learn the issues and the ramifications.  Making the genders equal, same, is NOT a good idea.

"There is some debate in the legal community about whether the deadline was ever valid in the first place."

   - It was part of getting Congress passage at the time.  Without the expiration, it is not known whether Congress consented.

“We’re going to get women in the Constitution whether men like it or not,” she said. [NOW President]

   - It is not "men" who oppose it.

Know your adversary.  NOW is adversary to the interests of all but the far Left.

Having a color-blind society as Rev Dr. Martin Luther King advocated is a goal the Left has abandoned in favor of a preference and reparations based society.  But gender preferences for women, like having their own bathrooms, must be stopped as they strive for a genderless society. 

If they win the fight to remove distinctions based on gender, can we then close once and for all the field of gender studies?
« Last Edit: January 25, 2019, 08:55:05 AM by DougMacG »

Crafty_Dog

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1470 on: January 25, 2019, 12:16:52 PM »
I brought up the matter of the time frame in my constitutional Law class in 1980 when Prof RBG was pushing the ERA and its merit for showing the required level of unanimity among the American people.  Prof RBG acknowledged the point.

IMHO a key point to appreciate here is the principle of statutory interpretation that says laws are not to be read as to make them meaningless.  Thus the inference will be that to have passed something as monumental as an Amendment to our Constitution that it must be read as requiring something much more than already exists.

Crafty_Dog

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DougMacG

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Re: Incapacity
« Reply #1472 on: February 13, 2019, 10:56:37 AM »
https://dailycaller.com/2019/02/12/supreme-court-ginsburg-incapacity/?utm_medium=email

"Despite its periodic encounters with judicial disability, the Supreme Court has no official mechanism for assessing the mental or physical health of a justice. What’s more, short of impeachment, there is no process to remove a justice who is medically impaired, as with a coma or Alzheimer’s disease."


I don't like the current system but believe the alternatives would be worse. 

Impeachment is unrealistic because the selection and confirmation process has become so polarized, all votes would be partisan.  No Democrat would vote for impeachment or removal of any liberal justice before the next election in and vice versa if the situation was reversed. 

Doctors might be able to keep someone alive or in a coma for a politically motivated period of time where they wouldn't choose to otherwise, but no one knows the outcome of the next election.

Threat of impeachment proceedings might cause an incapacitated justice to step down. There is no reason to think Justice Ginsburg has any mental incapacity.

Lung cancer for a nonsmoker is a nasty, unfair disease that took my father.  I don't wish it on anyone. 




Crafty_Dog

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Crafty_Dog

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Reconsidering Bush v. Gore
« Reply #1477 on: May 21, 2019, 06:27:27 AM »
Reconsidering Bush v. Gore
The Florida Supreme Court was wrong, but so was the U.S. Supreme Court.
By Gary Rosen
Updated Nov. 7, 2001 11:59 p.m. ET

Indignation toward the Supreme Court has been a defining feature of American conservatism since at least the early 1960s, when Chief Justice Earl Warren and his like-minded brethren launched the judicial "rights revolution" that has continued, more or less unabated, up to our own day. With each expansive new ruling over the years--on obscenity, school prayer, the death penalty, busing, abortion and a host of equally inflammatory issues--conservatives have found fresh evidence of the justices' disdain not only for the limits of their own office but, more gallingly, for the views of the American people and their elected representatives. In a controversial 1996 symposium, the religious journal First Things went so far as to wonder whether this "judicial usurpation of politics" should be seen as the "end" of American democracy.

Where this question stands now, in the wake of the extraordinary events that brought the 2000 presidential election to a close, is unclear. Judging by the many books published in the past year--and especially in the past several months--on the legal aspects of the dispute over the Florida vote, the right is hardly alone any longer in entertaining serious doubts about the role that the courts play in our democracy, nor is the left alone in discounting such concerns.

To be sure, as matters unfolded in Florida after the vote a year ago today, conservatives--or, to be more precise, the supporters of George W. Bush--saw their longstanding fears about the imperial judiciary confirmed yet again. In a series of remarkably freewheeling decisions, the Florida Supreme Court, invoking the "will of the people" to trump what it called "a hyper-technical reliance upon statutory provisions," allowed or ordered manual recounts that were seemingly designed to give Al Gore every opportunity to overtake the slim official lead of his Republican rival. James Baker, Mr. Bush's chief spokesman in Florida, called it "a sad day for America and the Constitution when a court decides the outcome of an election." For the conservative Weekly Standard, the Florida justices had become, as the magazine's cover declared, "Our Robed Masters."

But within a matter of days the entire situation had been turned on its head, both politically and ideologically. In short order, the five-justice conservative majority of the U.S. Supreme Court--William Rehnquist, Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas-- intervened first to impose a stay on the recount and then to reverse the Florida high court, thus barring any further effort to discover votes among the disputed ballots. The endless wrangling about hanging, dimpled and pregnant chads was over, Mr. Bush was president-elect, and conservatives, who had spent weeks decrying the high-handed activism of judges, were elated.

Now it was the other side's turn to speak of a "stolen" election and to vent its fury at a purportedly out-of-control judiciary. Taking their cue from Justice Ruth Bader Ginsburg, who omitted from her opinion the "respectfully" that customarily softens the concluding phrase "I dissent," liberal commentators denounced Bush v. Gore as a "travesty" (Mary McGrory in the Washington Post), a "scandal" (Randall Kennedy in the American Prospect) and a ruling that lacked any "credible explanation" (Anthony Lewis in the New York Times). The "four vain men and one vain woman" of the court's majority were accused of having simply indulged their "self-interested political preferences" (Jeffrey Rosen in The New Republic), rendering a decision that was at once "illegitimate, undemocratic, and unprincipled" (Cass R. Sunstein in the Chronicle of Higher Education). In a full-page ad in the New York Times, 554 law professors--"teachers whose lives," in their own words, "have been dedicated to the rule of law"--declared that by acting as "political partisans, not judges," the justices had "tarnished" the legitimacy of the court.

There was, of course, an element of almost comic irony in these full-throated denunciations, coming as they did from intellectual quarters that have long rationalized or celebrated the overreaching of the American judiciary. Such self-righteous critics should themselves have cleaner hands. But it is not enough to answer a charge of hypocrisy with a charge of hypocrisy. The fundamental question, with all that it portends for our constitutional politics, remains: Were the justices of the Supreme Court right or wrong to play the role they did in the 2000 presidential election?

From the moment reporters were handed Bush v. Gore in the waning hours of Dec. 12, it was apparent that the case had deeply divided the Court. The decision consisted of an almost unprecedented six distinct opinions: an unsigned "per curiam" ruling by all five conservative Justices, a concurrence by the three most conservative of them, and separate but overlapping dissents by each of the four liberal justices--Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens.

The concurrence written by Chief Justice Rehnquist and joined by Justices Scalia and Thomas hinged on the issue of just how activist the rulings of the Florida justices had been. Though "comity and respect for federalism" would normally compel the justices to defer to a state court's interpretation of state law, Chief Justice Rehnquist wrote, the Constitution did impose certain limits when it came to the procedures for presidential contests. In particular, Article II provides that the electors of each state are to be selected "in such Manner as the Legislature thereof may direct" (emphasis added in the opinion). Thus it was that the election laws devised by the Florida Legislature took on an "independent significance," demanding a degree of deference that the state's highest court, in its various reworkings of that law, had failed to show. By the light of Article II, the court's most reliably conservative troika held, the Florida justices had "impermissibly distorted" the intention of the state's lawmakers.

The actual judgment of the court--the ruling that carried the force of law--lay, however, in entirely different constitutional precincts, in concerns about the "equal protection" guaranteed by the 14th Amendment. Here the conservative justices, now including the more centrist Kennedy and O'Connor, formed a united front.

Where the Florida Supreme Court had run into constitutional trouble, the five justices declared, was in ordering a recount whose lone instruction to election officials was to determine the "intent of the voter." In the absence of more specific standards, this open-ended rule had resulted in a range of abuses, with contested ballots treated differently not only "from county to county but indeed within a single county from one recount team to another." The mechanism set in motion by the Florida court failed, in short, to "satisfy the minimum [constitutional] requirement for non-arbitrary treatment of voters."

Nor was there time, according to the justices, to devise a new procedure, since the Florida Legislature (at least in the estimation of the Florida court) had meant to protect the state's presidential vote from congressional challenge by taking advantage of the "safe harbor" provision of federal law, the deadline for which, as the decision was announced, was just minutes away. For the violations now before it, the Supreme Court concluded, the only available remedy was to bring the whole contentious process to a halt.

For their part, the liberal justices were unanimous in rejecting the idea that the Florida high court had somehow usurped the role of the state Legislature. The rulings of the Florida justices may have been flawed--"other interpretations were of course possible," Justice Souter observed, "and some might have been better than those [that were] adopted"--but they certainly fell within the bounds of permissible interpretation. Furthermore, Justice Stevens maintained, Article II did not "create state legislatures out of whole cloth, but rather takes them as they come--as creatures born of, and constrained by, their state constitutions," a circumstance that, in this case, gave the Florida Supreme Court broad powers of review.

More complicated was the response from this side of the court to the majority's equal-protection claim. On this question the liberal justices split. Justice Ginsburg saw no evidence that the recount "would yield a result any less fair or precise" than the official count that preceded it. Justice Stevens pointed to the danger of "too literal" an interpretation of constitutional principles; after all, he wrote, if the recount was suspect on equal-protection grounds, so too was Florida's entire election system, which left "to each county the determination of what balloting system to employ--despite enormous differences in accuracy."

Justices Breyer and Souter, by contrast, agreed that the conduct of the recount raised serious questions about the unequal treatment of similarly situated voters. But their agreement with the majority went only that far, and still left them very much in dissent. As Justice Breyer stipulated at the outset, and as Justice Souter echoed in his own opinion, "The Court was wrong to take this case."

Moreover, having taken it and found a violation of equal protection, the court was obliged to send it back to Florida for resolution. As both Justices Breyer and Souter stressed, six days remained until the electoral votes absolutely had to be cast on Dec. 18--meeting the imminent "safe harbor" deadline, all four liberal justices insisted, was not in fact required by Florida law--and the state's high court deserved a chance, however fleeting, to devise the uniform standards now demanded of it.

The most curious feature of the reaction to Bush v. Gore among conservatives has been the widespread agreement on two seemingly contradictory propositions: first, that the majority's decision was a necessary vindication of the rule of law; second, that the equal-protection analysis upon which it relied was entirely unpersuasive. Thus, for Rich Lowry, the editor of National Review, the Supreme Court "had little choice but to overturn the Florida court," though the "reasoning in its hasty per curiam decision was so shabby, one can only conclude that the Court did the right thing for the wrong reason." Robert H. Bork, writing in The New Criterion, also found "serious difficulties" with the court's reliance on the equal-protection clause. As he (like Justice Stevens before him) pointed out, disparities like those in the Florida recount "have always existed within states under our semi-chaotic election processes." Nonetheless, Mr. Bork argued, the justices could not permit "the stealing of a presidential election," even at the cost of an "inadequate majority opinion."

As a constitutional matter, what redeems Bush v. Gore in the eyes of Mr. Lowry, Mr. Bork and most other conservative commentators is the concurring opinion of Justices Rehnquist, Scalia, and Thomas. Indeed, it is widely (and plausibly) assumed that the court's three conservative stalwarts, having failed to persuade Justices Kennedy and O'Connor that the Florida court had violated Article II by rewriting the state's election laws, held their noses and accepted the egalitarian abstractions of what became the majority opinion. Either way, after all, the recount would be stopped.

That the concurrence had the better argument is hard to deny. As Richard A. Epstein of the University of Chicago and Michael W. McConnell of the University of Utah make clear in their separate contributions to "The Vote: Bush, Gore, and the Supreme Court," a useful collection of essays by legal academics on both sides of the controversy, the "interpretations" of the Florida Supreme Court went far beyond what was required to make sense of the sometimes ambiguous or conflicting provisions of the state's election code.

In the fateful first stage of the litigation, the Florida justices transformed a portion of the law concerned with rectifying "an error in the vote tabulation"--a transparent reference to problems with the counting machinery--into a mandate to correct errors committed by voters in the casting of their votes. For good measure, they also ignored a straightforward statutory deadline for certifying vote tallies and replaced it with a much later cutoff date entirely of their own making, thus throwing into disarray the whole process for mounting a challenge to the election results.

In the second stage of the litigation (and largely to compensate for their earlier errors), the Florida justices went still farther down the road of arrogation, ordering a statewide recount of all "undervoted" ballots under the direction of a single circuit judge--an action neither contemplated by state law nor requested by Mr. Gore or Mr. Bush. In all of these proceedings, the basic effect of the court's rulings was the same: to annul the far-reaching discretionary authority of the county and state officials to whom Florida law explicitly assigns the supervision of elections.

This much ground and considerably more are covered by Richard A. Posner in "Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts," the only book-length defense of the ruling in Bush v. Gore yet to appear. For Mr. Posner--a federal appeals court judge, lecturer in law at the University of Chicago and perhaps the country's widest-ranging and most prolific legal thinker--it is not enough to demonstrate that the Florida court went badly astray, "butchering" the state's election laws in violation of Article II. As he argues, with characteristic verve and intelligence, there are still deeper justifications for the Supreme Court's intervention.

Judge Posner concedes that more Florida voters probably set out to support Al Gore than George W. Bush, and that the wider availability of user-friendly voting technology would very likely have sent the Democratic candidate to the White House. But this, he insists, is no defense for what the Florida Supreme Court did. In our representative democracy, with its concern for order and stability, an election is "a formal procedure, a statutory artifact," not "a public-opinion poll." What matters is not some inchoate "general will," à la Rousseau, but votes, and what constitutes a vote is determined by pre-established rules. By promulgating its own rules after the fact, Judge Posner argues, the Florida court was not perfecting the democratic system, as many have claimed, but undermining one of its fundamental pillars: that succession take place according to procedures that are "fixed in advance, objective, administrable, and clear."

In a similar vein, Judge Posner dismisses those who think that the Supreme Court should ultimately have remanded the case to Florida, allowing the state courts and legislature to resolve the election dispute. Florida was entitled to six more days, he acknowledges, but "a responsible recount could not have been concluded by then." In fact, the whole mess, with rival slates of Florida electors, would soon have found its way to the divided halls of Congress, where it would have led to paralyzing chaos. With a new president still unnamed by Inauguration Day, Judge Posner somewhat fancifully suggests, the office would have passed down the line of executive succession until coming to rest, for various reasons, on then-Secretary of the Treasury Lawrence Summers--thus making him our first Jewish President! "Eventually, with the nation's patience completely exhausted," he writes, either Bush or Gore would have prevailed in the House of Representatives, but his presidency "would have started behind the eight ball, with an irregular and disputed accession, an abbreviated term of office, and no transition."

For Judge Posner, these "pragmatic" concerns are paramount in evaluating Bush v. Gore, and form what he considers its "hidden ground." As he concludes, the majority's decision may have "damaged the Court's prestige, at least in the short run; but it did not do so gratuitously--it averted a potential crisis."

There is much to be said for these exercises in apologetics. As its defenders have rightly stressed, Bush v. Gore, whatever the defects of the ruling, did bring an orderly conclusion to an unsettling chapter in our national politics, and it did so, at least in part, on the basis of a credible argument about the Constitution's Article II.

In these crucial respects, the Supreme Court's election-ending decision is not, as some of its critics have suggested, the ideological mirror image of Roe v. Wade, the 1973 abortion decision that has become synonymous with liberal judicial activism. As many liberals themselves are now willing to admit, the ruling in Roe was essentially a piece of judicial legislation, with no grounding in constitutional text or history. More important perhaps, the abortion decision, with its cavalier dismissal of how the states themselves wished to resolve the issue, continues to roil our politics even now, some 30 years after it was handed down--a marked contrast to the quiet that, outside the law schools, quickly descended over Bush v. Gore.

Still, in at least one key regard, the comparison to Roe is not favorable to the present Supreme Court. Say what one will about the authors of the abortion decision, their reasoning in the case, such as it was, was not a surprise; it followed their own activist precedents with respect to the so-called right of privacy, and it reflected a judicial temperament that they had displayed many times before. In Bush v. Gore, by contrast, the five conservative justices performed what can only be described as an ideological somersault, embracing an equal-protection claim that was not only unpersuasive on its own terms but irreconcilable with the basic tenets of their judicial philosophy.

That is the burden of Alan M. Dershowitz's instructive if at times intemperate and wrongheaded book, "Supreme Injustice: How the High Court Hijacked Election 2000." For Mr. Dershowitz--a professor at Harvard Law School who, when not himself taking part in the Florida litigation, was busily offering his opinions on it to any and all media takers--the clearest indication of the justices' culpability is what he calls "the-shoe-on-the-other-foot test." As he sees it, "they would not have stopped a hand recount if George W. Bush had been seeking it." Acting as partisans, they sought a political end without regard to the ideological means.

In support of this claim, Mr. Dershowitz puts together a damning compilation of the conservative justices' previous rulings and statements on the question of equal protection. All of these reveal, as anyone familiar with their views would expect, a profound reluctance to assign the idea anything like the sweeping effect they gave to it in the Florida case. Typical of the excerpts is this, from an opinion by then-Associate Justice Rehnquist:

In providing the Court with the duty of enforcing such generalities as the equal-protection clause, the framers of the Civil War amendments placed it in the position of Adam in the Garden of Eden. As members of a tripartite institution of government which is responsible to no constituency, and which is held back only by its own sense of self-restraint, . . . we are constantly subjected to the human temptation to hold that any law containing a number of imperfections denies equal protection simply because those who drafted it could have made it a fairer or a better law.

And this, from Justice Thomas:

The equal-protection clause shields only against purposeful discrimination: a disparate impact, even upon members of a racial minority, . . . does not violate equal protection. . . . [W]e have regularly required more of an equal-protection claimant than a showing that state action has a harsher effect on him or her than on others.

As Mr. Dershowitz writes, the "glaring and dramatic inconsistencies" between these earlier opinions and the Florida ruling strike at "the core of everything these Justices have stood for over many years."

Nor have the more clear-eyed members of the left, despite their condemnation of the decision, failed to see the opportunity presented by the conservative justices' epiphany on the meaning of equal protection. In The Nation, the historian Eric Foner found a "silver lining" in the court's having "opened the door to challenging our highly inequitable system of voting." Harvard Law School's Lani Guinier, writing in the New York Times, invoked the decision to renew her call for dispensing with winner-take-all legislative districts and moving to a system of proportional representation, since the court had been explicit in "valuing no person's vote over another."

Indeed, taken to its logical conclusion, the notion of equal protection affirmed by the court in Bush v. Gore would draw into question virtually every aspect of the country's locally run, state-administered and highly decentralized electoral system--a point that the conservative justices themselves, confronted by a different set of litigants, could have been counted on to make. This may explain what is perhaps the most objectionable part of the majority's opinion. As if to confess their bad faith, the justices announced toward the end of the decision that they were not, in fact, playing for keeps. Because "the problem of equal protection in election processes generally presents many complexities," they wrote, "our consideration is limited to the present circumstances."

Alongside this extraordinary disavowal, Alan Dershowitz places the following passage from a 1996 opinion by Justice Scalia, in which the Court's most articulate conservative aptly described the institution's proper role:

The Supreme Court of the United States does not sit to announce "unique" dispositions. Its principal function is to establish precedent--that is, to set forth principles of law that every court in America must follow. As we said only this term, we expect both ourselves and lower courts to adhere to the "rationale upon which the Court based the results of its earlier decisions." . . . That is the principal reason we publish our opinions.

No less disturbing as a matter of judicial philosophy--and seeming partisan favoritism--was the Supreme Court's obvious unwillingness to let the election dispute work itself out in Florida or, if need be, in Congress. If judicial self-restraint means anything, it is that the justices should respect the prerogatives of the other branches of the state and federal governments, especially with regard to those "political questions," as they are known in legal circles, that do not clearly fall within the court's institutional competence and would needlessly involve it in partisan controversy. In such instances, the Justices should exercise what the legal scholar Alexander Bickel called, in his classic formulation, the "passive virtues."

In the Florida case, this would have required, at a minimum, letting the state's high court try to remedy the (supposed) violation of equal protection in its recount standards. Would this have resulted in the political chaos predicted with such flair by Richard Posner? Perhaps. But as he himself grants (and as other commentators on both sides of the political aisle have agreed), the "likeliest outcome of the remand that Justices Souter and Breyer wanted would have been abandonment of the recount when it became clear that it could not be completed, subject to appropriate judicial review, by December 18." Under this scenario, Mr. Bush would still have won--but his victory would not have been tainted by the peremptory action of the court.

More fundamentally, there is the question of whether the Supreme Court should have taken any action at all in the Florida dispute. Even the better argument made by the conservative justices, based on Article II, was, for all its force, without precedent. There can be no doubt that the intentions of the Florida legislature had been perverted, but this alone did not compel the court to take the case or to find an infraction of the Constitution, and concerns about federalism might well have counseled restraint. Moreover, in light of the potential conflicts of interest involved--with candidate Bush having repeatedly declared his admiration for Justices Scalia and Thomas and the justices themselves having an obvious stake in who might be appointed to join them in the future--the court would perhaps have been well advised, in effect, to recuse itself.

Had this happened, we now know, Mr. Bush would almost certainly have retained his lead. As recounts conducted after the election at the behest of news organizations have shown, even the more open-ended counting standards advocated by Democrats and accepted by the Florida court would not have provided enough votes to put Gore ahead. Bush would have made it to the White House on his own.

Needless to say, the justices of the Supreme Court had no way of knowing this as they considered whether to intervene (nor should it have mattered, if their concerns were exclusively of the constitutional variety). What they did know--and what should have furnished the strongest argument for holding back--was that, under both the Constitution and federal law, it was the duty of other, more democratically accountable institutions to safeguard the integrity of the presidential election. The Florida Legislature was prepared to act, and so too was Congress, if disagreement among the branches of the state government had resulted in the naming of separate Republican and Democratic slates of electors.

Had it come to this, the scene on Capitol Hill would certainly have been partisan, and perhaps even ugly. But as we learned from the impeachment proceedings against President Clinton (and as we have had occasion to see again in the wake of the terrorist attack on Sept. 11), our politicians are capable during times of crisis of conducting themselves with the necessary sobriety and seriousness of purpose. Though Judge Posner is probably correct that "whatever Congress did would have been regarded as the product of raw politics," the same has been said, with some reason, about the court's settling of the Florida case--and politics is not supposed to be the court's business.

Why this should be so was well stated more than a century ago by the sponsor of the Electoral Count Act, the law under which Congress would have considered the Florida dispute. As Sen. John Sherman noted in introducing the measure--a belated response to the fiasco surrounding the Hayes-Tilden presidential contest of 1876--some members of Congress had wished to involve the Supreme Court in the process:

But there is a feeling in this country that we ought not to mingle our great judicial tribunal with political questions, and therefore this proposition has not met with much favor. It would be a very grave fault indeed and a very serious objection to refer a political question in which the people of the country were aroused, about which their feelings were excited, to this great tribunal, which after all has to sit upon the life and property of all the people of the United States. It would tend to bring that court into public odium of one or the other of the two great parties.

Naturally enough, much of the bitterness arising from the 2000 election has since evaporated, especially as the country has turned of late to decidedly more urgent matters. But American political life will gradually revert to something like its former state, and when it does, it is unlikely in the aftermath of Bush v. Gore that either of the "great parties" will see the Supreme Court in the same light.

The Democratic Party, of course, has never been well disposed to the court's current majority, and has fought energetically--often unfairly--to keep other conservative judges off the bench. But the critique of the conservative justices has previously been ideological; their ideas were "extremist," their view of the Constitution unacceptably narrow. Now, as never before, liberals have at their disposal the argument that has long served as a rallying cry for conservative critics of the Warren and Burger courts: that the justices are not just mistaken but, in some sense, corrupt, having forgotten the limits of their office.

Perhaps more profound may be the effect on Republicans and conservatives, who, one suspects, will find it difficult to continue avowing their old judicial principles with a straight face. Phrases like "judicial restraint" and "strict construction" may not sound the same for some time. Conservatives will thus be hampered in resisting what may be, in due course, the left's dominant reaction to Bush v. Gore: not second thoughts about its own history of judicial activism, but a renewed commitment to using the courts as an engine of social change. After all, if the judicial gloves are off, they are off for everyone.

The great shame in all this is that the 2000 election might have turned out very differently for the U.S. Supreme Court and our constitutional politics. Given the opportunity to decide who would be President, the conservative Justices, in the service of long-held principle, might have done what members of the high court have always found it difficult to do in the face of society's most pressing concerns and their own strongly held preferences. They might have passed.

—Mr. Rosen is managing editor of Commentary, in whose November issue this article appears, and author of "American Compact: James Madison and the Problem of Founding" (University Press of Kansas, 1999).


DougMacG

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2010
https://www.cnsnews.com/news/article/harvard-law-dean-kagan-did-not-require-study-us-constitutional-law-did-require-study?fbclid=IwAR2jOZhgRTH6rPBC851MvUsQgD2nBAH8nzjysFXbgMV_Mpzz3sRFWT3gF8E

"As Harvard Law Dean, Kagan Did Not Require Study of U.S. Constitutional Law But Did Require Study of International and Foreign Law"

The constitution is no longer applicable in their view.  You can have a Harvard Law degree and not study constitutional law?  A liberal arts degree should require it.  A high school diploma should require it.  Harvard should lose their accreditation.

Kagan should recuse herself from Supreme Court cases that require applying the constitution to the case.

ccp

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1480 on: May 23, 2019, 04:30:36 PM »
Your right Doug
Yet the Left MOB and their media hit men

all love to yell and preach how it is their Constitutional duty to investigate . Trump .

Suddenly the Constitution is important.

Rush pointed it out this afternoon too.

If this Bullshit was not carried by the Left's "made men " in the media like Mario's kid and the rest of the Democrat machine guys and gals in the Letist media it could almost be funny .  Instead it is a threat to all of us.

DougMacG

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1481 on: June 20, 2019, 07:47:51 PM »
'Tis the season for Supreme Court decisions and they are coming out with strange combinations of majorities and dissent so far while we wait for the big one, the citizenship question  on the census, which will probably come down 5-4 on partisan lines.
http://www.wsj.com/podcasts/opinion-potomac-watch/the-new-supreme-court/28993836-B656-41F3-B5AB-4226B19795C2

Crafty_Dog

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Crafty_Dog

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Crafty_Dog

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RBG and Kavanaugh
« Reply #1486 on: July 03, 2019, 04:08:46 PM »

ccp

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Kavanaugh first yr in a nutshell
« Reply #1487 on: July 04, 2019, 08:20:52 AM »
https://patriotpost.us/articles/64004-kavanaughs-first-year-report-card

I agree though a compliment from Ginsberg is usually based through her leftist politics glasses .

(though she and Scalia were friends .....   :|)

Crafty_Dog

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1488 on: July 05, 2019, 11:54:40 AM »
Thank you for that.


DougMacG

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https://thefederalist.com/2019/07/15/john-roberts-citizenship-decision-legally-politically-corrupt/

Roberts’ opinion affirms that including a question about citizenship in the decennial census is constitutional, writing that the “Enumeration Clause…permits Congress, and by extension the Secretary [of Commerce], to inquire about citizenship on the census questionnaire.” It affirms that the process by which it was to be reinstated was “reasonable, and reasonably explained,” consistent with the Administrative Procedures Act (APA). That should have been the end of it.
« Last Edit: July 16, 2019, 06:35:38 AM by DougMacG »

DougMacG

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American Creed, Constitutional Law, Stevens admits he was wrong on Kelo
« Reply #1491 on: July 18, 2019, 06:06:15 AM »
https://reason.com/2019/06/08/justice-stevens-admits-error-in-the-kelo-case-but-also-doubles-down-on-the-bottom-line/

Stevens admits he applied precedent wrongly.

He also neglected basic property rights wrongly.

The article says that decision has 80% disapproval. I didn't know the Forum had that wide a reach.

DougMacG

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American Creed, Constitutional Law: Leftists study Clarence Thomas
« Reply #1492 on: August 11, 2019, 06:55:25 AM »
https://www.theatlantic.com/magazine/archive/2019/09/deconstructing-clarence-thomas/594775/

The Left just doesn't get ideas likes constitutional jurisprudence.

Crafty_Dog

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DougMacG

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Issues American Creed Constitutional Law, Unsung Hero, Leland Keyser
« Reply #1495 on: September 25, 2019, 07:13:08 AM »
All they asked her to do was lie and take down an innocent man 'for the good of the country'.  She refused - for the good of the country.

One columnist (and I) salute her:
https://www.greensboro.com/opinion/columns/kathleen-parker-the-other-victim-of-the-kavanaugh-saga/article_23048407-2ca7-524a-af00-121d4b8b62e5.html

They almost got Kavanaugh anyway without knowing the date or even the year and without a single corroborating witness.

Crafty_Dog

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Mark Levin: Constitutional Convention
« Reply #1496 on: September 29, 2019, 08:03:38 PM »
Haven't watched this yet, but put it here for when I get around to it.

https://www.youtube.com/watch?v=mcbhRBQuKXg



Crafty_Dog

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Dershowitz: Most plea bargains are unconsitutional
« Reply #1499 on: November 06, 2019, 12:51:35 AM »
Most Plea Bargains Are Unconstitutional
Harsh punishments for defendants who exercise their right to trial violate the Sixth Amendment.
By Alan M. Dershowitz
Nov. 5, 2019 6:54 pm ET


When is a constitutional right not a right? When you’re punished for exercising it. If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say. Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual—even by the Supreme Court.

In my own practice I’ve seen cases in which defendants declined a plea bargain, were convicted, and received sentences more than 10 times as severe as prosecutors had offered them. A doctor was offered one year if he pleaded guilty to Medicaid fraud and received 11 years at trial. He rejected the plea offer because he believed he was innocent and had expert testimony to back him up. In another case, two businessmen accused of financial fraud were offered sentences of seven years and sentenced to 80 years after a trial.

The worst case involved two young men who robbed a store in Alabama, then picked up one robber’s uncle and drove away. A police chase and shootout ensued in which a state trooper was shot and killed. The two young men copped a plea and were sentenced to prison. The uncle—who was unarmed and mentally disabled—went to trial. The jury convicted him of conspiracy to commit felony murder and sentenced him to death. (Fortunately he wasn’t executed; he died of old age after several failed appeals.)

In a pending case, a young mother took a job at a health-care company and got caught up in a fraud scheme already under way, masterminded by the company’s principals. She refused a four-year plea offer, was convicted, and ended up with a 20-year sentence, which the district judge attributed to her decision to go to trial. The ringleaders of the scheme, who stole tens of millions of dollars, pleaded guilty and were sentenced to less than 10 years in prison.

Or consider two actresses charged in the college-admissions scandal. Felicity Huffman received 14 days after waiving a trial. Lori Loughlin could face as long as 45 years (although likely less) if she exercises her right to go to trial. The prosecutor has been clear: “If it’s after trial, we would ask for something substantially higher. If she resolves it before trial, something lower than that.”

In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.” Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial. As the Supreme Court put it: “We cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State” (emphasis added).

Yet imagine if the government, instead of directly punishing disfavored speech, accomplished the same objective in a roundabout way by offering a tax rebate for people who waive their First Amendment rights. Any judge would see through the maneuver. So why do the courts invoke the same meaningless distinction when it comes to the right to trial?

Because more than 90% of defendants waive the right to trial, usually for fear of the trial penalty. If the penalty were held unconstitutional, it could overwhelm the system. But is that a good enough reason to trample a constitutional right? Under America’s Constitution, rights are the absolutes to which practical considerations must adapt. We can build more courthouses and appoint more judges and prosecutors to accommodate the right to trial. We can also decriminalize many actions that are today treated as crimes, beginning with drug use.

Another rationalization for the trial penalty is that defendants who plead guilty are showing remorse and taking responsibility for their crimes. The Supreme Court asserted in Brady v. U.S. (1970) that in accepting a plea bargain, a defendant “demonstrates . . . that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time.” Yet in practice, most plea bargains make perfect rational sense and thus are no evidence of remorse. Often the defendants are the most experienced criminals, whose lawyers have personal relationships, and thus carry influence, with prosecutors.

The other justification is that some defendants who waive trial also provide information or testimony against higher-ups. Fine—reward them for providing that evidence. But don’t punish them for going to trial in their own case. Separate cooperation against others from waiving their own right to a trial. Prosecutors will respond that a defendant can’t both cooperate and go to trial; if he cooperates, he has to admit his own guilt. That isn’t always true; defendants often cooperate after a conviction.

In any case, there’s no constitutional problem with rewarding a defendant for cooperation. There is a constitutional problem with punishing a defendant for going to trial. The complex issue of how to deal with defendants who provide evidence against others should not be a barrier to ending the trial penalty of the vast majority of defendants, who have no such information and simply want to have a trial without being punished for exercising their Sixth Amendment right.

The time has come to end the unconstitutional trial penalty.

Mr. Dershowitz is a professor emeritus at Harvard Law School and author of the forthcoming book “Guilt by Accusation: the Challenge of Proving Innocence in the Age of #MeToo.”