Clarification/Follow-up by Bradd on 07/21/04 3:28 pm:
To ETW:

I expected to get a chance to review what I had written, but it just popped up, so please disregard the repetition on the bottom of my reply. Anyway, the gist of my answer made it.

Clarification/Follow-up by ETWolverine on 07/21/04 4:55 pm:
Bradd,

No problem. I understand the comments.

First of all, I agree with you that juries are triers of fact and not law. But sometimes the fact at hand is an issue of law. Furthermore, juries have a huge say in punishment (in criminal cases) and compensation (in civil cases), both of which can be considered matters of law, not fact.

Second, what is the difference if it is 12 people, 120,000 people, or 280 million people. They are still not trained to make these decisions. And worse, because of the nature of our system, may of the people deciding cases are of the LOWEST common denominator... as I put it before, they are the ones who were too stupid to get off jury duty. Do you really want them interpreting the facts of your case or matters of law to determine your future?

Third:
>>>The Supreme Court does not have the right to enact laws (who said they did?). The Court is invested by the Constitution with the Judicial power.<<<

Three words: Roe v. Wade.

Roe v. Wade was NOT a decision based on law, because there WAS no law on the books that allowed abortion in the USA. Roe V. Wade was clearly a politically motivated decision, not a legally motivated one. And now it is law. The fact is that Roe v. Wade is looked upon by jurists, legislators and comon people alike as a LAW rather than a legal precedent. You know it and I know it. Abortion rights groups use this decision as the basis for stating that abortion is a LEGAL RIGHT for women.

Courts have been legislating via judicial fiat for at least 40 years, and probably longer than that. very often, these days, if a particular idea can't be legislated because of a lack of popularity, it ends up being legislated via judicial fiat.

Another good example of this is the recent Massachusets court's rulings regarding gay marriage. Regardless of what your opinion on the matter is, there is no question that the liberal community was unable to get enough support for gay marriage to make a law allowing it. So they took it to court and let a judge set a precedent, and now that legal precedent has the imprimature of law... at least in Massachusets. Never mind that the people are against it by about 80%. Never mind that the legislators in Mass. are up in arms over the way the courts have trod upon THEIR powers. The fact is that for all intents and purposes, unless a State Constitutional Amendment is passed (which it likely will be in 2-3 years), this is now the law.

Bottom line: judges don't just interpret law these days. Thay mak law... that is a violation of sepparation of powers, and the entire checks and balances system.

Look, I'm not in favor of changing the jury system. I'm just pointing out that the argument you are making applies not just to voting, but to juries as well. Moreover, I am pointing out that the courts in recent years have overstepped their bounds in quite a few cases. Allowing them to be a body that is allowed to both CREATE law and INTERPRET law, which is what they have become, sets a dangerous precedent. The Constitution is clear. The ability to make laws sits with the Legislature, and the ability to interpret those laws lies with the Judiciary. Allowing one to have the powers of the other should not happen.

Elliot

Clarification/Follow-up by Bradd on 07/21/04 5:39 pm:
A jury of 12 is doable. A jury of 280 million is not. Your lack of respect for juries is curious. I don't know what you mean by punishment being a matter of law. There are ranges of allowed punishment depending on the crime or tort but actual punishment is based on the facts of the case (usually).

The LAW in the Roe v Wade case was a Texas criminal abortion LAW. The class action resulted in the overturning of that LAW. An example of a "wrong" law based on Supreme Court action. You may interpret the decision differently but the majority did not. Judicial precedent has the force of law (obviously) as common law (non-statutory). If this becomes "Judicial fiat" (and it does, in effect), and you oppose that, then you would have to throw out 200+ years of case law that has not been codified. How in the world can a final court make a decision WITHOUT, in effect, "creating" law?

I don't see it as a problem of separation of powers - one branch usurping the other. I see it as a final CHECK by the one on the other. The fact that 80% of the people may disagree with a particular ruling is PRECISELY why we are a nation of laws and NOT of men.

Again, I wonder if your disagreement stems from ideology rather than from the fact of a Supreme Court. Had the Court voted as you prefer, would you still be opposed to its judicial fiats?

Anyway, thanks for an engaging exchange. I think we have pretty much laid out our respective positions. This can't go on forever (maybe we need a Supreme Court at AW) so, if you wish, please give a final reply, and I'll leave it at that.

Clarification/Follow-up by tomder55 on 07/22/04 5:30 am:
yes my argument is debatable ,and you defined it correctly when you and dgade discussed the notion of original intent against the 'living document' concept.

I have no problem with Constitutional amendment .That is where the concept of a living document comes into play. That also satisfies intent.There was never intent for the courts to make law.... period.

If it makes you any happier ,I primarily blame the other branches for the situation . I think the President should declare as Andy Jackson once said [paraphrase] .'they made their ruling;now let them try to enforce it .'

BTW. I also made a reference to the Courts 2000 Presidential election decision. I think it was wrong for the court to take the case but I was happy with the outcome. The 2000 election should've been decided in either the decision of the Fla. Legislature or the Congress of the U.S. The courts as I mentioned has been activist on both sides of the political spectrum .

Finally ,I do not think the Supreme Court is the biggest violator of the system . The district courts have done the biggest mischief.

Clarification/Follow-up by ETWolverine on 07/22/04 7:57 am:
My lack of respect for juries stems from personal experience, and from the nature of the system itself.

Please understand, I am not against the idea of trial by jury. I just question (very strongly) the system by which jurors are picked.

First, you have a system by which anyone smart enough to invent an excuse to get out of jury duty does so. That leaves only the people lacking in imagination for your jury pool.

Then you have the selection process, in which counsel for one of the two sides will always eliminate anyone who looks like they have enough of a brain to make a decision that might go against them. This leave us with a pool of people who either don't have a clue, or who don't know how to make a decision without someone else to hold their hands and draw them to a conclusion.

Then, you put these people together in a room and tell them to do the exact thing you have chosen them for their inability to do... make a decision.

So you tell me. Do you think this is a system that puts forward the best minds for the job of decision making with respect to peoples futures?

>>>The LAW in the Roe v Wade case was a Texas criminal abortion LAW. The class action resulted in the overturning of that LAW. <<<

Exactly my point. By what right or jurisdiction does a court (any court) overturn a law, much less create a new one? It is the job of the Supremem Court and the lower courts to INTERPRET the existing laws. They do not have the right to overturn those laws. In Roe v. Wade, they overturned a law and created a new one in its place. They overstepped their bounds. Their decision had no basis in the existing law of that time. It was a POLITICAL decision that became the law of the land.

>>>If this becomes "Judicial fiat" (and it does, in effect), and you oppose that, then you would have to throw out 200+ years of case law that has not been codified. <<<

Yes. Absolutely.

Judicial precedent SHOULD set the standards by which law is interpreted and applied. It should NOT have ever been used to create new laws. So yes, I have an issue with the entirety of our 200 years of case law since Marbury v. Madison.

>>>How in the world can a final court make a decision WITHOUT, in effect, "creating" law?<<<

By applying certain set standards of how existing law is interpreted or applied, or otherwise creating a NEW PRECEDENT of how those laws are interpreted or applied. But that is different from actually creating NEW LAWS.

>>>I don't see it as a problem of separation of powers - one branch usurping the other. I see it as a final CHECK by the one on the other.<<<

So who places checks the decisions of the court?

The Executive can check the Legislature by vetoing laws that it disagrees with. The Legislature can check the Executive via supermajority cloture. The Judicial can check either the Legislature or the Executive by ruling against the implementation of any law that it believes to be unconstitutional. But if the Supreme Court can also MAKE LAW, where is the check and balance on that authority?

No, Bradd. There is a clear overstepping of bounds by the Judiciary here, one that was not intended by the Founding Fathers and which is not provided for in the Constitution.

>>>The fact that 80% of the people may disagree with a particular ruling is PRECISELY why we are a nation of laws and NOT of men. <<<

"We the PEOPLE of the United States of America..."

We ARE a nation of men, Bradd. That is why everyone has the right to vote for his representatives to the government. That is why Constitutional Amendments require a 2/3 vote of not just the Legislative Branch, but 2/3 of the States as well. That is why the rights of individuals are guaranteed in the Constitution, not the rights of the state. Men choose the people who create the laws.

And yes, 280 million of them have the right to choose... and they have the right to choose wrongly, by majority vote. And they often do. But that is their right, as guaranteed in the Constitution.

>>>Again, I wonder if your disagreement stems from ideology rather than from the fact of a Supreme Court. Had the Court voted as you prefer, would you still be opposed to its judicial fiats?<<<

Yes I would. Because regardless of the issues, judicial fiat is itself against my Conservative ideology. I beleive that the powers granted to each branch are the ONLY powers they should have.

Coincidentally, that is why I'm against the idea of a Constitutional Amendment against gay marriage... even though I am strongly against gay marriage. I don't think its a Federal issue, and I believe that marriage is an issue of STATES rights. The STATES have the right to make these decisions, not the Federal Government, and I believe that a Constitutional Amendment would limit the States powers. I am against that for the same reason that I'm against judicial fiat... it's not provided for in the Constitution. So yes, I do cross party lines on issues of governmental powers.

As I've said before, I'm nothing if not consistant in my thinking. It comes from being an analyst by training: you learn to apply certain standards and ideas consistantly across the board. That's what I'm doing here.

This conversation is getting pretty interesting. Sorry that you don't want to continue it. Personally, I have no problem with strings that go on forever...

Elliot

Clarification/Follow-up by tomder55 on 07/22/04 10:10 am:
good points Elliot. my only question to you is that of the States Rights Issue regarding marriage . Doesn't theArticle Four ' full faith and credit clause 'become the standard in this issue ? I think the prescident for marriage being a national issue was made when Utah was denied admission into the union until it outlawed polygamy.


If it is left to the States ,then the Mass. Goodridge v. Department of Health could very well become the standards for defining marriage ("evolving paradigm") if the full faith and credit clause is applied ; the Defense of Marriage Act could fall victim to the 10th amendment. Unfortunately a new Amendment may be the only solution.

Clarification/Follow-up by ETWolverine on 07/22/04 11:18 am:
Tom,

You are quite correct that the "full faith and credit" clause is a huge issue. That would be the only reason that I might consider a national Constitutional Amendment on the issue.

In the end, though, I think that the states will end up clarifying their own constitutions on the matter, most probably with state constitutional amendments. Massachusetts has already started the process of amending their constitution to define marriage as a union between man and woman, and it is expected that the amendment will pass within the next 2-3 years. In NY, the official interpretation is that marriage is between man and woman. The same is true in California. I have no problem with the state constitutions being amended... in fact, I think that is where they should take place rather than at the federal level. And in the end, I think that is what will happen. So the issue of "full faith and credit" will become a moot point, because all of the state constitutions will define marriage essentially the same way.

If that DOESN'T happen, then you are right, and a Constitutional Amendment will probably be the only solution... but not a very good one for those of us who believe in state's rights.

Clarification/Follow-up by ETWolverine on 07/22/04 11:38 am:
Tom,

One more point. I happen to like Dr. Quirk's solution. I think that it's elegant, I think it preserves the states' rights by not creating a Constitutional Amendment that limits those rights, and I think it gives the Legislature the check and balance against the judicial fiat power that is now being weilded by the Judicial branch. It would solve ALL (or most) of the problems regarding gay mariage and judicial powers quite nicely.

Elliot

Clarification/Follow-up by tomder55 on 07/22/04 11:53 am:

If one of the 50 states allows it ;it creates problems . Vermont will probably be the test.

Quirk’s solution is preferable. I do not think that the Marriage Amendment will be passed.