Gay Marriage in Mass.. - a Twist

Off Topic Politics & World Issues
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[quote]Zap Branigan wrote:
To deny that they have the power to compel the legislature is ludicrous. It is the very definition of checks and balances.
[/quote]

Ludicrous to assert this, you must mean. The court cannot compel legislation into existence. If it could, we would be fresh out of checks and balances.

What I see on this forum is a couple of folks who are determined to yell “judicial activism” but have a lot of trouble squaring it with the facts at hand.

If I point out that the court took the least action possible given its reading of Massachusetts law and both constitutions, you say that is precisely activism. Then, fairly hilariously, you insist that the court should have done more in order to escape the charge of activism.

If I say the court urged the legislature to action, you say that signified its approval of inaction.

Too much Alice in Wonderland around here for my taste.

62

[quote]nephorm wrote:
As such, we have legislators, judges, juries, and executives who have balanced roles to craft, interpret, and administer the law. All of whom are subject to the same intellectual frailties as the rest of us. And while you argue that something is a “basic human right,” someone else is busy disagreeing with you, possibly on the same grounds. Who wins?[/quote]

As long as neither party goes for their guns, both win. When the whole elaborate edifice gets too far out of whack with natural law, watch out.

63

[quote]endgamer711 wrote:

Let’s see, the court abjures the legislature to act, and you see this as somehow putting a stamp of approval on its inaction? I have an adjective to describe your theory: cockamamie.[/quote]

Hogwash - the court makes a rule and then goes out of its way to say that the rule really isn’t enforceable? Courts can write whatever they want - why add the language that “we can’t really make you do it”…?

Why wouldn’t the court add it in every single opinion? Well, the answer is easy - the court expects its rulings to be followed (see the case on gay marriage and every other case, well, ever) except when it decides, conveniently, to suggest that there is no need to follow it for political preferences.

Zap nailed it - the court doesn’t want the citizen petition as a matter of preference, no matter how legitimate it is. The court doesn’t want an amendment passed. But the court is supposed to be neutral, not picking favored policy outcomes.

64

[quote]endgamer711 wrote:

What I see on this forum is a couple of folks who are determined to yell “judicial activism” but have a lot of trouble squaring it with the facts at hand.

If I point out that the court took the least action possible given its reading of Massachusetts law and both constitutions, you say that is precisely activism. Then, fairly hilariously, you insist that the court should have done more in order to escape the charge of activism.

If I say the court urged the legislature to action, you say that signified its approval of inaction.

Too much Alice in Wonderland around here for my taste.[/quote]

You have the wrong definition of judicial activism. That term doesn’t mean ‘level of judicial activity’ - it means ‘level of judicial activity outside the scope of its constitutional duties’. If a court takes all kinds of actions, all within its proper role, that isn’t judicial activism. Inaction or action is not the deciding factor - acting outside the scope of the judiciary is.

65

[quote]endgamer711 wrote:

Ludicrous to assert this, you must mean. The court cannot compel legislation into existence. If it could, we would be fresh out of checks and balances.[/quote]

I meant to address this in the previous post.

Are you serious? You have it exactly backwards - without judicial review, the judicary can’t check the legislature. Ever since Marbury v. Madison it has been (essentially) understood that the judiciary, as a co-equal partner in the constitution, checks the legislature.

There is an understanding that the legislature will amend laws ruled unconstitutional or get rid of them completely or write new ones. It’s imperfect and indirect compulsion - after all, the legislature changes laws because it knows that the court will continue to rule in individual cases on behalf of the person challenging the unconstitutional law in the future - but to suggest that a court ruling is nothing more than ‘advice’ would completely emasculate the judiciary as a constitutional actor.

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[quote]endgamer711 wrote:
Zap Branigan wrote:
To deny that they have the power to compel the legislature is ludicrous. It is the very definition of checks and balances.

Ludicrous to assert this, you must mean. The court cannot compel legislation into existence. If it could, we would be fresh out of checks and balances.
…[/quote]

You start with a strawman so no need to address the rest of your fantasy.

The court need not compel legislation into existence, just to take the vote they are required by law to take!

The amendment must pass or fail on its own but the people have spoken and they have demanded a vote on it. By law the legislature is required to vote. They are refusing to do so.

67

[quote]thunderbolt23 wrote:
vroom wrote:

When the legislature makes laws that don’t violate their own constitution, then you’ll have the legislature making the decisions.

But this is circular - if the judiciary can’t check the legislature, no law will ever violate the constitution in fact: the legislature can do whatever it wants.

[/quote]

I admire your patience, what with having to repeatedly saying this to Vroom. Vroom, please read his response over a couple of times.

Legislatures make laws, courts decide if same are constitutional. Why is that so hard to grasp?

The Nuthunter Troll

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Can we all say ‘Sondergericht’?

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[quote]Zap Branigan wrote:
The court need not compel legislation into existence, just to take the vote they are required by law to take!
[/quote]
It’s the same thing, dumdum.

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[quote]thunderbolt23 wrote:
Are you serious? You have it exactly backwards - without judicial review, the judicary can’t check the legislature. [/quote]

Quite beside the point. Judicial review is not about compelling legislation.

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[quote]thunderbolt23 wrote:
If a court takes all kinds of actions, all within its proper role, that isn’t judicial activism.[/quote]

Oh, good. I’m glad we’re past that. So you agree the court has not indulged in judicial activism.

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[quote]thunderbolt23 wrote:
to suggest that a court ruling is nothing more than ‘advice’ would completely emasculate the judiciary as a constitutional actor.[/quote]

That’s silly. The court is free to do both things, and the one does not vitiate the other.

What a gout of hot air!

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[quote]endgamer711 wrote:
Zap Branigan wrote:
The court need not compel legislation into existence, just to take the vote they are required by law to take!

It’s the same thing, dumdum.[/quote]

This is the type of empty name calling that made me take a break from the politics forum.

It is not the same thing at all. The legislature can vote AGAINST the amendment or the can vote FOR the amendment. Either way the law requires they take a vote and they are not.

When the legislature fails to follow the law it is up to the courts to step in.

I am beginning to think you did not read the initial article.

74

[quote]endgamer711 wrote:
thunderbolt23 wrote:
If a court takes all kinds of actions, all within its proper role, that isn’t judicial activism.

Oh, good. I’m glad we’re past that. So you agree the court has not indulged in judicial activism.[/quote]

You are being obtuse. The court is not taking actions within their proper role, otherwise they would be acting to force the legislature to take the vote.

It certainly looks like judicial activism.

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[quote]endgamer711 wrote:

Quite beside the point. Judicial review is not about compelling legislation.[/quote]

Then what good is it? What good is a Supreme Court ruling that says segregation is unconstitutional if legislatures continue to segregate blacks from whites in school?

If legislatures have carte blanche to ignore what the court reviewed and ruled upon, judicial review is meaningless.

Or, better asked, was the Supreme Court decision in Hamdi not meant to compel legislation/lawmaking? Someone alert the media - and the Bush administration, which is currently behaving as if the ruling had the force of law.

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[quote]Zap Branigan wrote:
endgamer711 wrote:
thunderbolt23 wrote:
If a court takes all kinds of actions, all within its proper role, that isn’t judicial activism.

Oh, good. I’m glad we’re past that. So you agree the court has not indulged in judicial activism.

You are being obtuse. The court is not taking actions within their proper role, otherwise they would be acting to force the legislature to take the vote.

It certainly looks like judicial activism.[/quote]

Nah, just your idiocy again. Has it ever occurred to you that, for the legislature to be “compelled”, the Governor would have to act by prosecuting? Another check and balance you don’t seem to understand.

So go ahead and shit on Romney for his apathy, I won’t disagree. If that’s the best you can do for a charge of judicial activism, sorry it doesn’t make the grade.

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[quote]thunderbolt23 wrote:
endgamer711 wrote:

Quite beside the point. Judicial review is not about compelling legislation.

Then what good is it? What good is a Supreme Court ruling that says segregation is unconstitutional if legislatures continue to segregate blacks from whites in school?

If legislatures have carte blanche to ignore what the court reviewed and ruled upon, judicial review is meaningless.

Or, better asked, was the Supreme Court decision in Hamdi not meant to compel legislation/lawmaking? Someone alert the media - and the Bush administration, which is currently behaving as if the ruling had the force of law.[/quote]

What emptiness here. Of course the court’s rulings have the force of law, but those are rulings on legislation, not compulsion of a legislature to act.

The proper compulsion for a legislature comes from the voters. Oh, I forgot, you don’t trust the voters anymore either.

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[quote]Zap Branigan wrote:
endgamer711 wrote:
thunderbolt23 wrote:
If a court takes all kinds of actions, all within its proper role, that isn’t judicial activism.

Oh, good. I’m glad we’re past that. So you agree the court has not indulged in judicial activism.

You are being obtuse. The court is not taking actions within their proper role, otherwise they would be acting to force the legislature to take the vote.

It certainly looks like judicial activism.[/quote]

No matter how you slice it, if the court did not do something you thought they should, then it is judicial inactivism you are complaining about. Just let go of the sound bite and you may get it right eventually.

79

[quote]endgamer711 wrote:

Oh, good. I’m glad we’re past that. So you agree the court has not indulged in judicial activism.[/quote]

Trying to be cute doesn’t serve you. A state judiciary can do what it wants - but creating a right out of whole cloth that has never existed in Western civilization sounds like a job best reserved for elected officials serving the desires of their constituents rather than a panel of old lawyers imposing their will on the people regardless of the will of the people.

Or, maybe you are fine with oligarchical rule. Be careful what you wish for.

That, of course, is the Great Contradiction of the Left - so zealous that they are in possession of the singular, progressive truth of humanity, they are willing to strip off all institutional checks to get their agenda moved forward. A judge could very well be the biggest proponent of gay marriage there ever was and still think that, as a matter of restraint and responsibility to power, that a new right like gay marriage should emanate from its proper place through elected representatives.

Just don’t tell the Left that - the Left has no patience for anyone who stands athwart their grand visions of the Perfect Society with paleolithic ideas like checks and balances. The Left wants their vision enforced on the unwashed idiot plebeians, and by God, if that means trampling over the constitutionally imposed limits on government action, then damn the torpedoes - progress awaits!

The problem, as the conservative sees it, is that their are many ‘zealous manias’ out there that purport to own the Utopian Truth. We like institutional checks on government precisely because we don’t like anyone getting to wield power without republican process. This was an old Liberal idea - and thank goodness the Founding Fathers thought this way, and not the way of the Left.

The problem of the Left is that they like judicial activism right up until a judge hands down a ruling from on high that doesn’t comport with their Utopian Design. Then, in true faddish fashion, they suddenly become raging democrats - “Democracy Now!” - demanding that the romanticized ‘people’ take their power back from the powerful. But as long as judges keep delivering the goods in the name of Progress, the Left couldn’t care less about the very important institutional checks of the Constitution.

That is unwise. I don’t want activist judges regardless of what policy they advance. Period. I want judges to be as politically neutral as possible.

More plainly stated, I no more want an activist court that delivers me every single policy preference I am for through diktat than I do an activist court that delivers every single policy preference I am against. That, as an institutional matter, is important - I want the rules of democratic engagement to be observed, no more, no less. If I live in a state that duly passes gay marriage - which I oppose - via ordinary legislation, I have no complaint: I lost.

Anything different than that betrays our republican principles - you know, the ones the Left says they like, but ignore when convenient to ruling the earth?

80

[quote]thunderbolt23 wrote:
but creating a right out of whole cloth that has never existed in Western civilization sounds like a job best reserved for elected officials[/quote]

But this is exactly what the court sought to avoid. It made an advisory ruling without force of precedent, and urged the legislature to act. And, far from working with whole cloth, it was working from the state constitution.

Your only real issue is that you didn’t agree with the court’s ruling. Ain’t that too damn bad. I could certainly sympathize, though I don’t. But call them judicial activists? Forget it. The facts are all against that.