Separation of Church and State

[thunderbolt23]

[quote]vroom wrote:

At the same time, the courts exist to make a decision. Once they hear the case they almost always have to find some type of solution within the existing laws.

I do understand your point, but a lot of the claims of judicial legislation are simply bellyaching due to the nature of the decision made.[/quote]

Actually incorrect - courts do not have to hear a question they don’t think appropriate for judicial review.

And, of course, once a court undertakes a case, a perfectly viable solution is to judge the merits on the law as it exists. Just because a solution is required doesn’t mean there exists an invitation to become inventive.

Yes, but before this event happened it was obviously “ok”. I do not like the argument that if it was “ok” then that it is “ok” now. It may or may not be ok. It may simply be that the issue was never tested because it was commonly accepted by society at the time.

But there is a difference between something being right as a matter of policy, and something being right as a matter of law. Just because something was done in the past isn’t automatic grounds for keeping it - nor have I made that argument. W/r/t religious art in public places, there is no reason to suggest the law need be different. In an EP situation, when we can look and see if the results of segregation have led to EP under the law - different as a matter of law.

I disagree about social stasis. I may agree about other issues of stasis with respect to government and operation of the country, but not social stasis. Change is a constant and I severely doubt that the founding fathers were trying to suppress the right of the people to adapt to such change via the constitution.

They expected society to change and the Constitution with it - that is why the provided for an amendment process. As for the “Founding Father”, you don’t have to guess - go read what they had to say on the matter and see if it conforms to the Living Constitution theory.

Hamilton wrote in the Federalist Papers about the importance of judiciaries exercising “judgment, not will” and Jefferson was a self-professed “strict-constructionist”.

The Founding Fathers had just gotten through a war to secure democratic self-government rights - the last thing they would be interested in is a oligarchy by way of a House of Lords-type court, which is anti-republican to its core.

LOL.

…

Look, what other countries do often has bearing. No, not that the US has to or even should look to it, but that it provides legal thinking and argument on similar issues in similar legal systems.

Look, no they don’t. Even at a comparison to one of our closest allies whom we share a ton in common with - the Brits - demonstrates just how different our constitutional guarantees are. Our laws are our own, based on our assumptions and preferences. What another court does has no bearing on any of that.

You might find that in countries originally colonized by the British that there are very many similarities in basic legal premises.

So what? Similarities don’t mean anything.

Learn to ask a better question - what does our constitution say? What guarantees does it provide, and which ones does it omit?

The idea of the “rule of law” is one of tradition and predictability: in order to understand what the Establishment Clause means, we have to look to how we have understood it in our society - otherwise you undermine the whole concept of the rule of law. Americans will be the ones bound to live under the law - they need French German, and Spanish sensibilities to provide them with “proper” laws? Pure elitism.

Your suggestions - consistent with stuff you have said in the past - are invitation away from the rule of law: judges with power to shape law according to their personal policy preferences and to base decisions on what other nations think important, rather than the Americans that will be the ones living under the decision…

…are not at all compliant with our organization of government. And, ironically, they are anti-democratic.

Something else, to note - your version of “judging”, in a fit of self-immolation, would do away with a need for a Bill of Rights. After all, if we put our trust in the high court to properly create and retrac important rights as our sensibilities change, there would be no need to have a Bill of Rights - after all, the judges would know best and could just manage it via case law.

Why bother with a Bill of Rights if we utmost faith in our “judges” to make the law we need to protect the freedoms we are supposed to enjoy?

No thanks. Democracy is ugly, inefficient, and difficult at times - but I will take it over your oligarchy any day.

[vroom]

Oh boy, I see we are getting back to arrogant bloviating… at least it’s fun to watch.

[quote]thunderbolt23 wrote:
Actually incorrect - courts do not have to hear a question they don’t think appropriate for judicial review.[/quote]

Not all courts have the option of refusing any issue that arises. However, yes, especially with respect to appeals, the courts can decide which ones to hear.

And, of course, once a court undertakes a case, a perfectly viable solution is to judge the merits on the law as it exists. Just because a solution is required doesn’t mean there exists an invitation to become inventive.

You see, I understand your viewpoint, even if you think I don’t.

The problem is, and it has been thus for many legal systems in countries based on a British background, that courts interpret.

They look at many factors and try to determine what was meant, what was the intent, and they try to reflect that. That is the way the judicial system has and does work.

I realize you don’t like it and that it confounds your desire for a strict and minimalist interpretation of the constitution, but I am not certain that the founding fathers were attempting to change how the judicial branch is meant to operate.

If they had wanted to, they certainly could have tied the hands of the judicial branch explicitly. No, they wanted three competing branches, and in order to compete they must all have powers to effect change. Of course, the legislative branch always has eventual and final upper hand within the confines of the constitution.

They expected society to change and the Constitution with it - that is why the provided for an amendment process. As for the “Founding Father”, you don’t have to guess - go read what they had to say on the matter and see if it conforms to the Living Constitution theory.

Social change and constitutional change are not synonymous. Society changed with the invention of television, but the constitution did not have to change. Society changed with the adoption of the Internet, but the constitution did not need to change.

The constitution deals with how the various segments of society relate to one another, more so than getting into the nitty gritty of every social detail. The legislative branch and then later, when interpretation is necessary, the judicial branch determine how these nitty gritty details are impacted by the constitution as it then stands.

Hamilton wrote in the Federalist Papers about the importance of judiciaries exercising “judgment, not will” and Jefferson was a self-professed “strict-constructionist”.

Again, I completely understand that at times “will” may be executed. However, again, I believe it is too often assumed that “will” is being exercised when in fact a large complex collection of previous judgments makes it difficult to determine what is appropriate.

This, again, is an appropriate time for the legislative branch, if it has the courage to accept the responsibility, steps in and removes the complex built up set of interpretations and comes up with a constitutionally valid solution for the public.

Seriously, the judicial system is not a cookie cutter rubber stamp portion of government. It too is a dynamic partner in the governing process and acts as a check or balance through the process of interpretation. It must have an appropriate amount of power to fulfil this role.

The Founding Fathers had just gotten through a war to secure democratic self-government rights - the last thing they would be interested in is a oligarchy by way of a House of Lords-type court, which is anti-republican to its core.

This is why the legislative branch has the ultimate authority. While the judicial branch can have an influence, it is not all powerful. However, most governments, including yours, include both elected and non-elected participants for the express purpose of acting as a series of checks and balances.

[quote]
Look, no they don’t. Even at a comparison to one of our closest allies whom we share a ton in common with - the Brits - demonstrates just how different our constitutional guarantees are. Our laws are our own, based on our assumptions and preferences. What another court does has no bearing on any of that.[/quote]

I’m not suggesting that it is necessary to look to and adhere to the actions of decisions of others, but that they can offer instruction.

There are many countries with many different constitutions. Those of the western world are all trying to accomplish similar things. Provide rights to the populace. Divide governance into a series of checks and balances. Give the people penultimate authority to adjust their laws or their constitutions, through a process, over time.

It’s not that complex.

So what? Similarities don’t mean anything.

Learn to ask a better question - what does our constitution say? What guarantees does it provide, and which ones does it omit?

The idea of the “rule of law” is one of tradition and predictability: in order to understand what the Establishment Clause means, we have to look to how we have understood it in our society - otherwise you undermine the whole concept of the rule of law. Americans will be the ones bound to live under the law - they need French German, and Spanish sensibilities to provide them with “proper” laws? Pure elitism.

LOL.

What the heck are talking about with respect to sensibilities? You seem to be under the mistaken impression that I adhere to some type of “sensibilities” notion. I do not.

What you seem to miss is that there is in fact more than one “grand experiment” in progress and that freedom and liberty are being explored in many countries. There is no harm in being aware of how situations are unfolding in other jurisdictions.

Like it or not, it happens.

Your suggestions - consistent with stuff you have said in the past - are invitation away from the rule of law: judges with power to shape law according to their personal policy preferences and to base decisions on what other nations think important, rather than the Americans that will be the ones living under the decision…

Nowhere have I suggested to make decisions on what others think is important. However, I do suggest that sometimes when others have expressed thoughts and opinions, that they can be learned from.

Now, I know you of all people find this a hard notion to accept, but really, widening the scope of your thoughts is not harmful.

…are not at all compliant with our organization of government. And, ironically, they are anti-democratic.

Something else, to note - your version of “judging”, in a fit of self-immolation, would do away with a need for a Bill of Rights. After all, if we put our trust in the high court to properly create and retrac important rights as our sensibilities change, there would be no need to have a Bill of Rights - after all, the judges would know best and could just manage it via case law.

LOL.

Again, you show a complete lack of understanding of what I am saying. The courts do not create and retract rights, or at least they should not, but they do hear cases which can demonstrate that rights have been denied even though they are promised.

In Canada, we have some very explicit rights delineated in our constitution, and our courts have decided that denying gay marriage would abrogate those rights.

The courts, here, didn’t create the right of gay marriage, but the recognized that the rights guaranteed to individuals meant that it was inappropriate to deny it.

No, I’m not arguing that your rights are the same, or that they are global, or that you should adopt gay marriage, but that there may be actions taken by government which are unconstitutional and deny rights as guaranteed by your own constitution.

Then, as in the issue of separation of church and state, we can disagree with the interpretation made.

[quote]
Why bother with a Bill of Rights if we utmost faith in our “judges” to make the law we need to protect the freedoms we are supposed to enjoy?

No thanks. Democracy is ugly, inefficient, and difficult at times - but I will take it over your oligarchy any day.[/quote]

LOL.

I can’t believe this tripe. Nobody has to trust the judges… and that is why the legislature should get involved to rectify the situation. If and when the courts are overstepping their bounds, then it is the will of the people through legislature that can easily correct it.

You seem to overlook this little trump card that was designed into your system precisely for the purpose of bitching about the judicial system.

The judicial branch must also be “strong” in order to stand up to the legislative and executive branches. It too has to be able to effect change and make meaningful decisions. It should indeed do this via interpretation and not “will”.

That is in fact the intended design.

Now, as for interpretation of any particular law, that is a very different issue.

[thunderbolt23]

[quote]vroom wrote:
Oh boy, I see we are getting back to arrogant bloviating… at least it’s fun to watch.[/quote]

Where?

Not all courts have the option of refusing any issue that arises. However, yes, especially with respect to appeals, the courts can decide which ones to hear.

No? Then tell us, Vroom - you seem to know. Which distinction do you mean?

I realize you don’t like it and that it confounds your desire for a strict and minimalist interpretation of the constitution, but I am not certain that the founding fathers were attempting to change how the judicial branch is meant to operate.

You seem unclear as to the point and on your English history.

The Brits have no written constitution - the Founding Fathers took the exact opposite approach. They wanted a written Constitution for the express purpose of taking away the arbitrary line-drawing of “rights” distinctions in the way the English did.

You reference the Founding Fathers a great deal - without seeming to know much about them.

If they had wanted to, they certainly could have tied the hands of the judicial branch explicitly. No, they wanted three competing branches, and in order to compete they must all have powers to effect change. Of course, the legislative branch always has eventual and final upper hand within the confines of the constitution.

They didn’t want the judiciary to “effect change” - the Federalist Papers say the exact opposite of what you are suggesting and the entirety of Article III says nothing of the sort.

There is a problem, Vroom - while your viewpoint may be interesting and one you like, it doesn’t have the historical basis you keep referencing.

The judiciary was created to be a judiciary - to judge cases and controversies within the law, to act as guardian of the liberties enshrined in the Constitution, and to make sure the democratic rules of engagement are observed on all of the many things the Constitution doesn’t enshrine as a right.

The constitution deals with how the various segments of society relate to one another, more so than getting into the nitty gritty of every social detail. The legislative branch and then later, when interpretation is necessary, the judicial branch determine how these nitty gritty details are impacted by the constitution as it then stands.

Correct - but that is not what you were advocating. “Applying” is not “effecting change”.

[quote]Again, I completely understand that at times “will” may be executed. However, again, I believe it is too often assumed that “will” is being exercised when in fact a large complex collection of previous judgments makes it difficult to determine what is appropriate.

This, again, is an appropriate time for the legislative branch, if it has the courage to accept the responsibility, steps in and removes the complex built up set of interpretations and comes up with a constitutionally valid solution for the public.

Seriously, the judicial system is not a cookie cutter rubber stamp portion of government. It too is a dynamic partner in the governing process and acts as a check or balance through the process of interpretation. It must have an appropriate amount of power to fulfil this role.[/quote]

It isn’t a dynamic partner of anything - you may want it to be, and that is fine, but that isn’t the government we have.

There is plenty of power for a judiciary to supply its function outside of inventing law out of thin air in the name of “progress”. And, there is nothing easy about sticking to a traditional role - trying to figure out the original intent of a law isn’t mathematical and people often disagree.

However, that is where the argument should be - the court has no inherent anti-democratic power to effect progress as an agent of change. It isn’t there, not in the Constitution.

This is why the legislative branch has the ultimate authority. While the judicial branch can have an influence, it is not all powerful. However, most governments, including yours, include both elected and non-elected participants for the express purpose of acting as a series of checks and balances.

You continue to hit this point, but it has become meaningless - we all know the judiciary is there to provide a check on the other branches of government. The point is that the judiciary is confined to its role under separation of powers, and no matter how bad the judiciary would like a law to be in place, it can’t step over the line just because it is frustrated that the legislature won’t act.

And that is exactly what drives the kind of idea you propose - frustrated that the democratic process is “lagging behind”, you and others like you want the judiciary to invent policy changes on behalf of the populace.

That has no basis in our government - the judiciary has to wait on the democratic process on issues reserved to the democractic process, just like anyone else.

[quote]I’m not suggesting that it is necessary to look to and adhere to the actions of decisions of others, but that they can offer instruction.

There are many countries with many different constitutions. Those of the western world are all trying to accomplish similar things. Provide rights to the populace. Divide governance into a series of checks and balances. Give the people penultimate authority to adjust their laws or their constitutions, through a process, over time.

It’s not that complex.[/quote]

Again, irrelevant. The complexity, lack thereof, or anything in between is not instructive to the American system of jurisprudence.

It makes no difference how the French define a broad term like “Due Process” - what matters is how we define it, what the language was supposed to mean when it was inserted into the text, what it has meant historically.

Why would anyone care what another country’s version of the law is on a given topic when the law - as passed by the relevant legislature - was a reflection of what the relevant Americans wanted in the law?

Again, it’s not that this makes sense - you just want it to be that way. You hope that enlightened opinions of other countries - ones you cherrypick, I assume, after all, we aren’t going to follow the law of Maori tribesmen on matters of women’s rights - can change the law in a way you would prefer: more “progressive” ideas, maybe gay marriage as an EP guarantee.

This is naked policy-preference stuff. It has no basis in sound jurisprudence - it is merely a way to try and get “rights” announced as supreme law that won’t get passed in the relevant legislature.

[quote]What you seem to miss is that there is in fact more than one “grand experiment” in progress and that freedom and liberty are being explored in many countries. There is no harm in being aware of how situations are unfolding in other jurisdictions.

Like it or not, it happens.[/quote]

Nothing wrong with looking at what other nations do when you are deciding whether or not to pass legislation. But when adjudicating an American law, what another country thinks about the constitutionality of a “stop and frisk” is meaningless.

Also, if a court makes a decision based on foreign moods and attitudes could very well be a Due Process violation. As an American, I am engaged in a certain kind of conduct, then I get hauled into court complaining my conduct is illegal, the court says “well, countries in the EU seem to think this is fairly illegal, therefore you violated the law”…this is straightforward unfair surprise. If, as an American, I am trying to conform my behavior to the law that governs me only to be haled into court to be told what I’m doing is illegal based on foreign opinion (foreign people who had no say in the passage of the given law) - well, Vroom, that violates my rights to procedural and substantive Due Process.

If you think this is a mere flight of fancy, you’d be wrong - there are these kinds of Due Process problems among Americans being hauled into court among the various states within the Union. The idea is that the offender of the law can say “how could I have ever had notice that I would be breaking a law when it is based on another sovereign’s version of the law”?

Sorry, Vroom.

Now, I know you of all people find this a hard notion to accept, but really, widening the scope of your thoughts is not harmful.

We all tire of your lectures on broadening our viewpoints. Your view is no broader than mine, or anyone else’s.

[quote]Again, you show a complete lack of understanding of what I am saying. The courts do not create and retract rights, or at least they should not, but they do hear cases which can demonstrate that rights have been denied even though they are promised.

In Canada, we have some very explicit rights delineated in our constitution, and our courts have decided that denying gay marriage would abrogate those rights.

The courts, here, didn’t create the right of gay marriage, but the recognized that the rights guaranteed to individuals meant that it was inappropriate to deny it.[/quote]

And Canada can do that if she please. Our EP jurisprudence carries no such logic, history, or rationale.

No, I’m not arguing that your rights are the same, or that they are global, or that you should adopt gay marriage, but that there may be actions taken by government which are unconstitutional and deny rights as guaranteed by your own constitution.

Who said there weren’t?

I can’t believe this tripe. Nobody has to trust the judges… and that is why the legislature should get involved to rectify the situation. If and when the courts are overstepping their bounds, then it is the will of the people through legislature that can easily correct it.

You keep making the same mistake - that the courts have a blank check to make a bunch of policy, and the legislature has the burden of playing “catch-up” to change the law if the legislature doesn’t like what the judiciary made up.

This is a pure Vroomian fiction - the court simply doesn’t have the power to advance the policy ball and put the legislature on the defensive to counter their moves.

You seem to overlook this little trump card that was designed into your system precisely for the purpose of bitching about the judicial system.

The judiciary has the power to act as a check against a legislature that goes too far - but the judiciary itself is bound by the same law.

The judiciary doesn’t have the “trump card” unless the Constitution says it does. The judiciary must remain within the separation of powers regardless of what the legislature does or doesn’t do.

This is basic stuff, but it seems to overwhelm you. Did you know - fear of all fears - that there even times when the legislature acts unconstitutionally that the judiciary can’t do anything about it? Did you know that?

The judicial branch must also be “strong” in order to stand up to the legislative and executive branches. It too has to be able to effect change and make meaningful decisions. It should indeed do this via interpretation and not “will”.

I love a strong judiciary. I don’t love a judiciary that thinks it has extra-constitutional powers.

That is in fact the intended design.

I am not sure you have the foggiest clue about what the American constitutional design is all about, given the areas of limitations you have demonstrated.

That said, it seems more likely to me that you are describing the system you want, rather than the system actually in place.

[Sloth]

[quote]vroom wrote:

Perhaps the land leases should have absolutely nothing to do with religious beliefs?

How hard is that to understand? Apparently, according to a statement above, they were granted benefits because of their religious nature.
[/quote]

So your argument is based on a statement.
Do you actually know anything about the case? Could you demonstrate how the BSA received their lease due their religious beliefs? Do you know why the Boy Scouts received the lease?

It had nothing to with religious beliefs. You’d have to look at their service in WW2 on the home front, and their service and maintenance of the Park since their first lease. They were the best stewards one could ask for. They serviced and developed the park with their own time and money, saving the taxpayer’s dime. Again, it had nothing to do with religion.

Furthermore, you need only look at other leases and funds awarded by the same council. They include groups like a Gay Men’s Choir…The council was hardly using a litmus test for awarding leases.

If there was no attempt to establish a religion, and the city council had not discriminated in handing out leases to non religious groups, you’re left with one argument. That just because the BSA holds religious beliefs, they’re disqualified from leasing land.

[vroom]

[quote]thunderbolt23 wrote:
The Brits have no written constitution - the Founding Fathers took the exact opposite approach. They wanted a written Constitution for the express purpose of taking away the arbitrary line-drawing of “rights” distinctions in the way the English did.

You reference the Founding Fathers a great deal - without seeming to know much about them.
[/quote]

Again, you miss the whole thrust, why am I not surprised?

Do you imagine that your founding fathers invented government? Do you imagine they invented laws? Do you imagine that they invented the concept of trials and judges?

The constitution was not created within a vacuum.

I think we can both agree that the founding fathers wanted to ensure that certain rights and privileges were bound into the very constitution to ensure that the government could not simply ignore them or remove them at will.

Correct - but that is not what you were advocating. “Applying” is not “effecting change”.

I think you will be surprised to find out that any decision that does not precisely confirm the status quo will have the effect of creating change.

There is no need to expect the judiciary to have some delineated purpose, other than to make judgments, to see that they will end up being an instrument of change.

Now, again, I’m not suggesting they should have the intent to cause change or that they are supposed to find ways to do so or any such foolish thing. Please don’t put words in my mouth in that regard.

[quote]It isn’t a dynamic partner of anything - you may want it to be, and that is fine, but that isn’t the government we have.

There is plenty of power for a judiciary to supply its function outside of inventing law out of thin air in the name of “progress”. And, there is nothing easy about sticking to a traditional role - trying to figure out the original intent of a law isn’t mathematical and people often disagree.
[/quote]

If the judiciary has to make difficult decisions, since the intent of the law is not “mathematical” then it is in fact going to be a dynamic partner in determining the course of society whether anyone likes it or not.

It doesn’t matter whether the founding fathers wanted it to be so explicitly, that is the system they designed and that we are living within, isn’t it?

You continue to hit this point, but it has become meaningless - we all know the judiciary is there to provide a check on the other branches of government. The point is that the judiciary is confined to its role under separation of powers, and no matter how bad the judiciary would like a law to be in place, it can’t step over the line just because it is frustrated that the legislature won’t act.

And you are under the assumption that this is what I’m suggesting it should do? Why do you keep arguing against things that I’m not saying?

And that is exactly what drives the kind of idea you propose - frustrated that the democratic process is “lagging behind”, you and others like you want the judiciary to invent policy changes on behalf of the populace.

LOL. That is pure nonsense.

That has no basis in our government - the judiciary has to wait on the democratic process on issues reserved to the democractic process, just like anyone else.

The judiciary can certainly look at laws, look at the constitution, and strike them down. Now, again, as I’ve said repeatedly, but you don’t seem to understand. It is certainly possible that the judiciary has gone too far, but it can still have striking effects on society without doing so and I’m not advocating that they should do so.

Please stop arguing your points as if I was.

Again, irrelevant. The complexity, lack thereof, or anything in between is not instructive to the American system of jurisprudence.

LOL.

The systems that were in place at the time, and the surrounding documents that discuss them, indeed have a lot of relevance.

This is why it is important to realize that a judicial branch was described. The founding fathers were not unaware that they were creating a body outside of the direct democratic process!

Holy shit, how can you keep missing that concept?

It makes no difference how the French define a broad term like “Due Process” - what matters is how we define it, what the language was supposed to mean when it was inserted into the text, what it has meant historically.

What it means historically is going to have a bit to do with the common conventions of the time, which will help define what is or was expected of the various branches. Again, you seem to think that the US popped into existence like the virgin Mary with no references to historical issues.

Again, it’s not that this makes sense - you just want it to be that way. You hope that enlightened opinions of other countries - ones you cherrypick, I assume, after all, we aren’t going to follow the law of Maori tribesmen on matters of women’s rights - can change the law in a way you would prefer: more “progressive” ideas, maybe gay marriage as an EP guarantee.

LOL. When you say stuff like this you sound like an arrogant idiot.

I’m not suggesting US law be based on any bullshit from other countries, but that when the world figures something out, that others can learn from it.

Or, perhaps, the US does not always hold itself up as an example to the rest of the world, so that it can learn to democratize and embrace freedoms?

Enough of the arrogance. The very thing you argue so vociferously against is what the US tries to do constantly, in terms of informing the world how it should be operating.

According to your logic, you should just shut the fuck up and let everyone else alone.

[quote]
This is naked policy-preference stuff. It has no basis in sound jurisprudence - it is merely a way to try and get “rights” announced as supreme law that won’t get passed in the relevant legislature.[/quote]

Zzzz. More baloney. Again, stop trumpeting what you think I’m saying instead of the very basic things I am saying.

Policy preferences has nothing at all to do with what I am saying. Interpretation of underlying principles may cause people to realize that rights given are being broken, and changes occur to correct it.

That is not unreasonable and it happens from time to time. The fact that there are people who prefer it and fight for it does not make it inappropriate nor does it mean that I am for any type of inventive process to create rights where they don’t exist.

Just stop the nonsense.

Nothing wrong with looking at what other nations do when you are deciding whether or not to pass legislation. But when adjudicating an American law, what another country thinks about the constitutionality of a “stop and frisk” is meaningless.

Also, if a court makes a decision based on foreign moods and attitudes could very well be a Due Process violation. As an American, I am engaged in a certain kind of conduct, then I get hauled into court complaining my conduct is illegal, the court says “well, countries in the EU seem to think this is fairly illegal, therefore you violated the law”…this is straightforward unfair surprise. If, as an American, I am trying to conform my behavior to the law that governs me only to be haled into court to be told what I’m doing is illegal based on foreign opinion (foreign people who had no say in the passage of the given law) - well, Vroom, that violates my rights to procedural and substantive Due Process.

LOL. You are a crackpot. There are great thoughts on the planet concerning rights, freedoms, democracy and so forth, which are fundamental in modern democracies.

Thinking about them and what they mean with respect to how government and society interact, and whether that fits with the ideals of the founding fathers would seem to be prudent.

Again, stop the nonsensical twisting baloney. It’s just plain silly.

[quote]
You keep making the same mistake - that the courts have a blank check to make a bunch of policy, and the legislature has the burden of playing “catch-up” to change the law if the legislature doesn’t like what the judiciary made up.

This is a pure Vroomian fiction - the court simply doesn’t have the power to advance the policy ball and put the legislature on the defensive to counter their moves.[/quote]

Your mistake seems to be that you assume I am suggesting the courts should have a blank check. This is a pure fiction on your part.

Simply declaring a law unconstitutional, assuming it actually is, will put the legislature on the ball to enact more appropriate legislation if they wish to address the issue.

You seem to not understand the effect that actions taken have. Nowhere does recognizing this fact imply any of the nonsense you keep attributing to me.

[quote]
The judiciary has the power to act as a check against a legislature that goes too far - but the judiciary itself is bound by the same law.

The judiciary doesn’t have the “trump card” unless the Constitution says it does. The judiciary must remain within the separation of powers regardless of what the legislature does or doesn’t do.[/quote]

Again, you misunderstand. The elected legislature has the trump card. They have the power to change all, including the constitution, in order to ensure that they effect the will of the people within the currently existing constitution.

How in the fuck could you think I’m suggesting otherwise?

I honestly hope you know more about your own constitution than I do, but holy shit man, you need to stop inventing some strange viewpoint so that you can attack it.

It’s really making you look foolish.

[vroom]

[quote]Sloth wrote:
So your argument is based on a statement.

Do you actually know anything about the case? Could you demonstrate how the BSA received their lease due their religious beliefs? Do you know why the Boy Scouts received the lease?
[/quote]

I’ve already stated I didn’t know anything about the fucking case, is it that hard to follow?

Anyway, then you should be arguing that the judge in question, quoted by the statements given above, was wrong. If so, then it should be quite easy to show that there was no preferential treatment and this whole thing should never have happened.

The fact that this isn’t trivially happening leads me to wonder if perhaps your little diatribe isn’t the full story.

Care to reveal where your facts are coming from?

[apbt55]

I have a question what is a religion?

Is it a group of people witha common belief?

Wouldn’t the ACLU technically be a religion?

So being shouldn’t they be removed from all matters of state?

[thunderbolt23]

[quote]vroom wrote:

Again, you miss the whole thrust, why am I not surprised?

Do you imagine that your founding fathers invented government? Do you imagine they invented laws? Do you imagine that they invented the concept of trials and judges?

The constitution was not created within a vacuum.

I think we can both agree that the founding fathers wanted to ensure that certain rights and privileges were bound into the very constitution to ensure that the government could not simply ignore them or remove them at will.[/quote]

Good, then what was the point of this content-free post?

I think you will be surprised to find out that any decision that does not precisely confirm the status quo will have the effect of creating change.

Vroom, I think you need to dispense with the basics and recognize I am no stranger to the topic at hand.

New cases by their very nature can move the status quo by application of law. So what?

Now, again, I’m not suggesting they should have the intent to cause change or that they are supposed to find ways to do so or any such foolish thing. Please don’t put words in my mouth in that regard.

Here is the problem - everything you have typed up to this point suggests otherwise, primarily your idea that the judiciary should be a policy advancer and the legislature will have to play defense on what the judiciary does.

If the judiciary has to make difficult decisions, since the intent of the law is not “mathematical” then it is in fact going to be a dynamic partner in determining the course of society whether anyone likes it or not.

Dynamic, no - if the law has to be applied to new circumstances, whatever change occurs should be slow, methodical, and restrained: the definitional opposite of “dynamic”.

It doesn’t matter whether the founding fathers wanted it to be so explicitly, that is the system they designed and that we are living within, isn’t it?

Er, nope - it is not the system they designed and we have certainly departed from it. However, things are looking up and there looks to be a trend away from “trendy theories” and a move back to basics.

And you are under the assumption that this is what I’m suggesting it should do? Why do you keep arguing against things that I’m not saying?

Then here is a suggestion, Vroom - get away from your bland, sprawling abstractions and say what you mean.

LOL. That is pure nonsense.

Is it? Have you not made this argument on behalf of gay marriage being a “constitutional right”?

[quote]The judiciary can certainly look at laws, look at the constitution, and strike them down. Now, again, as I’ve said repeatedly, but you don’t seem to understand. It is certainly possible that the judiciary has gone too far, but it can still have striking effects on society without doing so and I’m not advocating that they should do so.

Please stop arguing your points as if I was.[/quote]

Then what are you advocating, Vroom? You continue to ramble without much specifity or content - if that isn’t what you mean, then straightforwardly say what you mean.

What kind of judiciary do you want?

[quote]LOL.

The systems that were in place at the time, and the surrounding documents that discuss them, indeed have a lot of relevance.

This is why it is important to realize that a judicial branch was described. The founding fathers were not unaware that they were creating a body outside of the direct democratic process!

Holy shit, how can you keep missing that concept?[/quote]

Again, we run into your limitations. The Founding Fathers, when adopting the Constitution, were acting as a legislature, so in making the laws they had all kinds of influences. So what?

What does that have to do with using modern foreign influences to determine the policy of our laws in a case, which is what we were talking about?

What it means historically is going to have a bit to do with the common conventions of the time, which will help define what is or was expected of the various branches. Again, you seem to think that the US popped into existence like the virgin Mary with no references to historical issues.

Vroom, I must insist you get some education on the issue. What a French court said in 1782 on the issue of “search and seizure” plainly has no bearing on what the concept means to Americans, even if the time frame was concurrent with the Framers.

You continually make stuff up and try and pass it off as fact - there isn’t a line of thinking by the Framers that supports your argument here: why pretend like there is?

The Framers has no desire to make sure foreign ideas would be incorporated into Constitutional jurispridence. None. Zero. You may want it, that doesn’t make it so.

LOL. When you say stuff like this you sound like an arrogant idiot.

Of course, I sound like neither - I am explaining the problem with trying to incorporate foreign opinions into our jurisprudence.

I’m not suggesting US law be based on any bullshit from other countries, but that when the world figures something out, that others can learn from it.

To which I have stated that that is fine in the context of passing our laws - maybe we like a tax that someone else has enacted.

But does it inform our adjudication of our own sovereign laws? No. There is no principled way to do it, and we don’t want it.

Or, perhaps, the US does not always hold itself up as an example to the rest of the world, so that it can learn to democratize and embrace freedoms?

You are getting too far afield - we are talking about adjudicating, not policymaking. Countries often swap ideas on policy - but judges, when sitting down looking at a dispute between two parties and trying to figure out what the law means, has no predicate to see what the French or the Japanese think about whether person had a right to procedural Due Process before he got his welfare benefits terminated.

Enough of the arrogance. The very thing you argue so vociferously against is what the US tries to do constantly, in terms of informing the world how it should be operating.

Nonsense, Vroom - you need to learn to read. You again confuse policymakers with law adjudicators. The US doesn’t try to get a foreign court to make its decisions based on our Bill of Rights or anything like that. Foolishness.

Again, we see your limits.

According to your logic, you should just shut the fuck up and let everyone else alone.

You can always tell when Vroom gets outmanned in argument - he loses sight of the argument and gets upset.

[quote]Zzzz. More baloney. Again, stop trumpeting what you think I’m saying instead of the very basic things I am saying.

Policy preferences has nothing at all to do with what I am saying. Interpretation of underlying principles may cause people to realize that rights given are being broken, and changes occur to correct it.

That is not unreasonable and it happens from time to time. [/quote]

Who said it did? As we have more and more agency regulation of our public and private lives, there all kinds of Due Process problems that have come up that weren’t there before.

And? You keep making noise without adding any clarity.

[quote]The fact that there are people who prefer it and fight for it does not make it inappropriate nor does it mean that I am for any type of inventive process to create rights where they don’t exist.

Just stop the nonsense.[/quote]

Hilarious. There is no nonsense - something isn’t nonsense merely because you have no ability to assail the argument effectively.

[quote]LOL. You are a crackpot. There are great thoughts on the planet concerning rights, freedoms, democracy and so forth, which are fundamental in modern democracies.

Thinking about them and what they mean with respect to how government and society interact, and whether that fits with the ideals of the founding fathers would seem to be prudent.

Again, stop the nonsensical twisting baloney. It’s just plain silly.[/quote]

And this is where Vroom has shown his ass - I just gave you a plain constitutional argument as to a problem with incorporating foreign opinion into law as a Due Process “unfair surprise” issue.

This has a basis in our current law as between states. There are Due Process problems even as someone from New York gets sued in Iowa when he had no legitimated expectation Iowa law would apply to his case. There is a whole line of cases. Courts and scholars have discussed it.

The next level is even more problematic - unfair surprise by way of violating a law where the illegality finds its roots in another sovereign’s version of the law, which comes as a complete shock to the man hauled into court.

Despite this, Vroom dismissed it with a wave of a hand, even though he hasn’t read about it, doesn’t know about it, and can’t even fake an argument that he has heard of it.

Vroom, do you ever tire of being a fraud? We were having a fine discussion until you, as usual, started the tantrum.

The Due Process problem is a serious problem to overcome - it’s not my problem that you have no idea what the hell I am talking about. But could you do all of us a favor and next time just say “hmmm, I wasn’t aware of that angle - that is interesting”.

Instead, we get your “you’re a crackpot” nonsense. Well, are the Conflict of Law professors and judges who have raised the same issues as me crackpots as well?

I am sure they will be delighted to know that an uninformed Canadian who doesn’t know Due Process from dumbbell sees the problem as nonsense.

The judiciary has the power to act as a check against a legislature that goes too far - but the judiciary itself is bound by the same law.

Correct - and the judiciary is not only a check, but it is duty-bound not to invade the province of the other branches. Period.

A judiciary cannot, as a matter of wanting to check a legislature it disagrees with, create that “check” if doing so violates the separation-of-powers.

I honestly hope you know more about your own constitution than I do, but holy shit man, you need to stop inventing some strange viewpoint so that you can attack it.

Heh. Are you seriously - seriously - with a straight face thinking you know more about the American constitution and are educating me on its reach and history?

Seriously, Vroom?

No - seriously?

Vroom, you don’t have a clue about teh Founding Fathers and their aims, you don’t have a clue about US constitutional history, and you have no idea as to the most basic mechanics of separation-of-powers.

I have to ask again - seriously?

It’s really making you look foolish.

Why do you think anyone bothers believing your condescending jibberish anymore, Vroom? How can I “look foolish” when it is clear I know more about the topic than you probably ever will?

That isn’t a statement of arrogance - people are free to disagree with me based on what they have learned. But to suggest my opinions are “foolish”, well, Vroom, isn’t the act over?

Why do you keep trying?

Although, we can take a vote - who else thinks my approach to this is “foolish”? I am all ears.

Oh, and nice job - we were having a fine discussion on the points until the tantrum came out. What’s the count of ruined threads up to now, big guy?

[Sloth]

[quote]vroom wrote:

I’ve already stated I didn’t know anything about the fucking case, is it that hard to follow?
[/quote]

Then quit trying to argue this specific issue with me? If you don’t know anything about the case why are you challenging my posts about it?

Anyway, then you should be arguing that the judge in question, quoted by the statements given above, was wrong. If so, then it should be quite easy to show that there was no preferential treatment and this whole thing should never have happened.

That’s what I’m doing…arguing that the judge and the ACLU were in the wrong…You’re the one stepping in, admittedly not knowing a thing about this, and arguing with me.

[quote]
The fact that this isn’t trivially happening leads me to wonder if perhaps your little diatribe isn’t the full story.

Care to reveal where your facts are coming from?[/quote]

My facts come from common public knowledge. One can go to wikipedia to read up how the Scouts were granted a lease after WW2 because of their efforts on the home front. Also, their maintenance of the park is widely reported. Though, I believe it’s mentioned in wiki also, if you care to check there.

They received another lease, simply because they proved to be outstanding care-takers that developed and maintained the park while saving the city the expenses.

You can look over the BSA legal site for a summary of the history of BSA involvement in Balboa Park.

What specific facts are you challenging me on? I’ll get a you source for what you name. If you just want a complete rundown, there’s a multitude of articles out there.

[thunderbolt23]

[quote]Sloth wrote:

You’re the one stepping in, admittedly not knowing a thing about this, and arguing with me.[/quote]

I sense a very strong trend of this.

[Mufasa]

Again…

I have to state that it’s regrettable that some of these Cases (like Balboa) will never see the Light of Day of the Supreme Court because the BSA simply can’t afford it.

Between the ACLU, Government and Private Lawsuits, greatly diminished funding and the difficulty is reassigning Units to the Private Sector, it is an Organization under seige.

I really wish some of these cases COULD be argued…because I really think that the ACLU is often overreaching in their interpretation of the Establishment Clause.

Mufasa

[vroom]

[quote]thunderbolt23 wrote:
Vroom, I think you need to dispense with the basics and recognize I am no stranger to the topic at hand.
[/quote]

Until you can follow my argument without inventing things I’m not saying, I’ll think I have to resort to extreme basics…

Here is the problem - everything you have typed up to this point suggests otherwise, primarily your idea that the judiciary should be a policy advancer and the legislature will have to play defense on what the judiciary does.

Show me where I stated that the judiciary should be a “policy advancer”. I’d really like to see it. Now, I can see the legislature reacting to judicial decisions, but that is not the same thing at all.

Dynamic, no - if the law has to be applied to new circumstances, whatever change occurs should be slow, methodical, and restrained: the definitional opposite of “dynamic”.

Great, let’s argue about whether or not the process is “dynamic”. It potentially takes years for a case to be brought and then perhaps additional years to be taken to the supreme court level, for example, so in that sense it is not dynamic. But, at the same time, a decision can bring about change, which makes it dynamic.

Then here is a suggestion, Vroom - get away from your bland, sprawling abstractions and say what you mean.

Good Christ man, I’m suggesting that the judiciary is an agent of change, merely by acting as it should, whether or not either of us would promote it. Every decision it makes, unless merely to confirm a previous one, causes change.

Is it? Have you not made this argument on behalf of gay marriage being a “constitutional right”?

We aren’t discussing gay marriage but I would suggest that equal treatment for gender and religion can result in a simple and basic determination that it is unconstitutional to deny gay people access to this instrument.

I know you don’t feel this way, but then, neither you nor I are sitting on the bench applying our views. Don’t you get it, arguing for an interpretation does not imply that I want the judiciary to invent a way to implement it.

However, I’m sure my view does depend on the mass of confusing interpretations that are already in place. Don’t blame me for the fact that they are there!

Then what are you advocating, Vroom? You continue to ramble without much specifity or content - if that isn’t what you mean, then straightforwardly say what you mean.

What kind of judiciary do you want?

What in the hell does what I want have to do with anything?

Again, we run into your limitations. The Founding Fathers, when adopting the Constitution, were acting as a legislature, so in making the laws they had all kinds of influences. So what?

What does that have to do with using modern foreign influences to determine the policy of our laws in a case, which is what we were talking about?

So, when the judiciary attempts to interpret laws they generally try to determine the intent of the laws. Understanding the issues AT THAT TIME that the law was enacted may help them do so if the laws themselves are unclear.

You are aware that sometimes laws are somewhat deficient, especially as time passes, such that interpretation is required. Yes, back to the concept that interpretation is not a mathematical process.

Again, I am not suggesting that modern foreign influences be used as examples to determine a case. Stop being so extremely dense.

Vroom, I must insist you get some education on the issue. What a French court said in 1782 on the issue of “search and seizure” plainly has no bearing on what the concept means to Americans, even if the time frame was concurrent with the Framers.

You continually make stuff up and try and pass it off as fact - there isn’t a line of thinking by the Framers that supports your argument here: why pretend like there is?

I’ve never suggested this line of crap and you damned well know it.

The Framers has no desire to make sure foreign ideas would be incorporated into Constitutional jurispridence. None. Zero. You may want it, that doesn’t make it so.

Sigh. Are you really this much of an idiot? I guess so.

Of course, I sound like neither - I am explaining the problem with trying to incorporate foreign opinions into our jurisprudence.

Unfortunately, I’m not suggesting that foreign opinions be used to determine a case. So, keep on trying to imagine that I am. It really helps!

To which I have stated that that is fine in the context of passing our laws - maybe we like a tax that someone else has enacted.

But does it inform our adjudication of our own sovereign laws? No. There is no principled way to do it, and we don’t want it.

Okay, let’s consider the basic concept of rights and how they originate. Are rights only as delineated specifically or do they exist until stripped away by some type of law?

Or, let’s consider the fact that science can change our understanding of some issues. Do we ignore that new understanding the next time a legal issue involves that new understanding?

No, in both cases, there is the possibility of learning, or awareness, of something new and different, heretofore not generally considered or understood. In such a case, the courts may be forced to interpret the existing laws with respect to applicability to a new situation or understanding.

It might be necessary to investigate the new issue to some level, to consider it, or to try to understand it to some level, in order to make a decision about it.

Nonsense, Vroom - you need to learn to read. You again confuse policymakers with law adjudicators. The US doesn’t try to get a foreign court to make its decisions based on our Bill of Rights or anything like that. Foolishness.

Again, we see your limits.

Again, we see your arrogance. Look, the world changes and evolves. Sometimes, as in the world of science, the change may not originate in the US. However, that change may still result in a case before the courts.

You can always tell when Vroom gets outmanned in argument - he loses sight of the argument and gets upset.

Oh yes, I’m outmanned by the great thunderdolt yet again. Dude, relax your ego, it makes you look like a fool. No, never mind, keep on plugging, it’s kind of humorous.

And this is where Vroom has shown his ass - I just gave you a plain constitutional argument as to a problem with incorporating foreign opinion into law as a Due Process “unfair surprise” issue.

This has a basis in our current law as between states. There are Due Process problems even as someone from New York gets sued in Iowa when he had no legitimated expectation Iowa law would apply to his case. There is a whole line of cases. Courts and scholars have discussed it.

The next level is even more problematic - unfair surprise by way of violating a law where the illegality finds its roots in another sovereign’s version of the law, which comes as a complete shock to the man hauled into court.

Despite this, Vroom dismissed it with a wave of a hand, even though he hasn’t read about it, doesn’t know about it, and can’t even fake an argument that he has heard of it.

I’m dismissing it moron because I am not in fact proposing what you suggest. I’m am suggesting that there are facts, scientific being the easiest to simply hypothesize, that may need to be considered.

If you want to suggest otherwise, then you can go and make the claim yourself, because I am not.

[quote]
Vroom, do you ever tire of being a fraud? We were having a fine discussion until you, as usual, started the tantrum. [/quote]

Ahahahaha.

You keep thinking I’m trying to say things I’m not, then declaring me a fraud. I’m not claiming to be the great constitutional expert, I’m suggesting that claims of judicial inventiveness are often overblown as part of a political agenda.

As such, I’m merely suggesting how change can be brought about by the judiciary, or due to changes in society or technology, without the courts acting outside of their role.

That’s all. All the rest are fantasy arguments that you have made up so that you can knock them down.

Go ahead, declare yourself the winner some more, it makes you look “impressive”.

The Due Process problem is a serious problem to overcome - it’s not my problem that you have no idea what the hell I am talking about. But could you do all of us a favor and next time just say “hmmm, I wasn’t aware of that angle - that is interesting”.

If I was proposing what you are arguing against, I would certainly suggest it was a big problem. Strangely, I wouldn’t argue something so stupid, so I don’t see why I have to say anything about it except to tell you, once again, that you are making things up.

Instead, we get your “you’re a crackpot” nonsense. Well, are the Conflict of Law professors and judges who have raised the same issues as me crackpots as well?

Ahahahaha.

I am sure they will be delighted to know that an uninformed Canadian who doesn’t know Due Process from dumbbell sees the problem as nonsense.

Ahahahaha. It’s nonsense to argue about it because I’ve never proposed the issue you are busy decrying.

[quote]
Correct - and the judiciary is not only a check, but it is duty-bound not to invade the province of the other branches. Period.

A judiciary cannot, as a matter of wanting to check a legislature it disagrees with, create that “check” if doing so violates the separation-of-powers.[/quote]

Maybe you should consider the fact that you state “correct” a fair amount. It might clue you in that I’m not off on some loony tangent making the wild suggestions you think I am.

I honestly hope you know more about your own constitution than I do, but holy shit man, you need to stop inventing some strange viewpoint so that you can attack it.

Heh. Are you seriously - seriously - with a straight face thinking you know more about the American constitution and are educating me on its reach and history?

Seriously, Vroom?

No - seriously?

Vroom, you don’t have a clue about teh Founding Fathers and their aims, you don’t have a clue about US constitutional history, and you have no idea as to the most basic mechanics of separation-of-powers.

Are you even paying attention? I was suggesting you’d know a lot more than I would, but that you should stop making up a fictitious argument on my behalf so that you could knock it down.

Perhaps, if you paid attention to the tiny point I am trying to make, you’d realize I am not as clueless as you seem to assume. You might also come across a little less arrogant.

[quote]
I have to ask again - seriously?

Why do you think anyone bothers believing your condescending jibberish anymore, Vroom? How can I “look foolish” when it is clear I know more about the topic than you probably ever will?[/quote]

Yeah, you look foolish because you are making up a viewpoint that I have never expressed so that you can lord about your presumed superior knowledge about issues I’ve never raised or suggested.

That isn’t a statement of arrogance - people are free to disagree with me based on what they have learned. But to suggest my opinions are “foolish”, well, Vroom, isn’t the act over?

Why do you keep trying?

Although, we can take a vote - who else thinks my approach to this is “foolish”? I am all ears.

LOL.

[quote]
Oh, and nice job - we were having a fine discussion on the points until the tantrum came out. What’s the count of ruined threads up to now, big guy?[/quote]

There is no tantrum at all, unless the diatribe about your superiority above qualifies as one?

You don’t look foolish because of your knowledge on the subject… but you do look very damned foolish.

[BostonBarrister]

Some analysis of the underlying question, courtesy of Professor Volokh:

http://www.volokh.com/archives/archive_2007_07_01-2007_07_07.shtml#1183674214

Painting of Jesus in Louisiana Courthouse:

The New Orleans Times Picayune ( http://blog.nola.com/times-picayune/2007/07/aclu_sues_to_remove_jesus_pict.html ) reports:

[i]A portrait of Jesus Christ that hangs in the lobby of Slidell City Court violates the First Amendment to the U.S. Constitution, specifically a mandate calling for the separation of church and state, according to a federal lawsuit filed Tuesday by the Louisiana ACLU....

Vincent Booth, acting executive director and board president for the ACLU, said after filing the suit that he believes the portrait, along with lettering beneath that says, "To know peace, obey these laws," violates established U.S. Supreme Court law....

A local priest has identified the portrait as "Christ the Savior," a 16th Century Russian Orthodox icon. It depicts Jesus holding a book open to biblical passages, written in Russian, that deal with judgment. The ACLU says the book is the New Testament.[/i]

The icon, according to this blog post, is this: ( http://community.myfoxhouston.com/blogs/chassan/2007/06/28/JESUS_MUST_COME_DOWN )

The reproduction is a little fuzzy, so I’m not positive about the entirety of the text; but at least the first two thirds are a Russian version of John 13:34 ( John 13:34-35; KJV - A new commandment I give unto you, That - Bible Gateway; ), “A new commandment I give unto you, That ye love one another; as I have loved you, that ye also love one another.” (For the modern Russian version, see here: John 13:34-35; RUSV - Заповедь новую даю - Bible Gateway; )

My sense is that even under Justice Scalia’s dissenting opinion ( McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES UNION OF KY. [03-1693] | FindLaw ) (joined by Justice Thomas and Chief Justice Rehnquist) in one of the Ten Commandments cases, such an overt reference to Christianity and to a New Testament verse would be impermissible: Justice Scalia, after all, stressed that he viewed Ten Commandments displays as permissible because they are essentially endorsed by “such a broad and diverse range of the population – from Christians to Muslims – that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.”

He also wrote that “The Establishment Clause would prohibit, for example, governmental endorsement of a particular version of the Decalogue as authoritative,” and rejected Justice Stevens’s argument that the Scalia approach would read the Establishment Clause as “protecting only the Christian religion or perhaps only Protestantism”: "All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history, and all the other examples of our Government’s favoring religion that I have cited, have invoked God, but not Jesus Christ.

Perhaps Justice Scalia should have taken the broader view that the Establishment Clause allows all government endorsement of religion, or at least of Christianity generally; and it’s possible that he took this view in the creche cases. But his Ten Commandments opinion takes a view that is more restrictive of government religious speech, and under this view it seems that the Slidell painting may not be displayed.

The Alliance Defense Fund, which has agreed to represent the court, responds ( Alliance Defending Freedom - Protecting Religious Freedom ):

[i] “The First Amendment allows public officials, and not the ACLU, to decide what is appropriate for acknowledging our nation�??s religious history and heritage. The painting clearly delivers an inclusive message of equal justice under the law,” said ADF Senior Legal Counsel Mike Johnson. “It is mind-boggling that the ACLU would oppose such a widely cherished idea simply because it is offended by the image in the painting.”

"The ideas expressed in this painting aren't specific to any one faith, and they certainly don�??t establish a single state religion," Johnson explained. "The reason Americans enjoy equal justice is because we are all 'created equal, endowed by [our] Creator with certain unalienable rights.' This painting is a clear reflection of the ideas in the Declaration of Independence." ...[/i]

It’s hard for me to see how such an ecumenical perspective can be read into a painting of Jesus holding a fragment from the New Testament (or, if the theory is that the text is irrelevant because next to no-one would understand it, we can just settle on this being a painting of Jesus with some undefined pronouncement), coupled with “To know peace, obey these laws,” presumably referring to the laws expounded by Jesus.

Thanks to Frank Bell for pointers to the story and to the icon.

[vroom]

[quote]BostonBarrister wrote:
“The reason Americans enjoy equal justice is because we are all ‘created equal, endowed by [our] Creator with certain unalienable rights.’ This painting is a clear reflection of the ideas in the Declaration of Independence.” … [/quote]

I don’t suppose anybody can enumerate these rights?

[vroom]

Y’know, it occurs to me that if gay individuals want to get married, that they should simply create a new sect of Christianity, let’s say “Gay Christianity”, which allows gay marriages…

[Sloth]

[quote]vroom wrote:
thunderbolt23 wrote:
Vroom, I think you need to dispense with the basics and recognize I am no stranger to the topic at hand.

Until you can follow my argument without inventing things I’m not saying, I’ll think I have to resort to extreme basics…

Here is the problem - everything you have typed up to this point suggests otherwise, primarily your idea that the judiciary should be a policy advancer and the legislature will have to play defense on what the judiciary does.

Show me where I stated that the judiciary should be a “policy advancer”. I’d really like to see it. Now, I can see the legislature reacting to judicial decisions, but that is not the same thing at all.

Dynamic, no - if the law has to be applied to new circumstances, whatever change occurs should be slow, methodical, and restrained: the definitional opposite of “dynamic”.

Great, let’s argue about whether or not the process is “dynamic”. It potentially takes years for a case to be brought and then perhaps additional years to be taken to the supreme court level, for example, so in that sense it is not dynamic. But, at the same time, a decision can bring about change, which makes it dynamic.

Then here is a suggestion, Vroom - get away from your bland, sprawling abstractions and say what you mean.

Good Christ man, I’m suggesting that the judiciary is an agent of change, merely by acting as it should, whether or not either of us would promote it. Every decision it makes, unless merely to confirm a previous one, causes change.

Is it? Have you not made this argument on behalf of gay marriage being a “constitutional right”?

We aren’t discussing gay marriage but I would suggest that equal treatment for gender and religion can result in a simple and basic determination that it is unconstitutional to deny gay people access to this instrument.

I know you don’t feel this way, but then, neither you nor I are sitting on the bench applying our views. Don’t you get it, arguing for an interpretation does not imply that I want the judiciary to invent a way to implement it.

However, I’m sure my view does depend on the mass of confusing interpretations that are already in place. Don’t blame me for the fact that they are there!

Then what are you advocating, Vroom? You continue to ramble without much specifity or content - if that isn’t what you mean, then straightforwardly say what you mean.

What kind of judiciary do you want?

What in the hell does what I want have to do with anything?

Again, we run into your limitations. The Founding Fathers, when adopting the Constitution, were acting as a legislature, so in making the laws they had all kinds of influences. So what?

What does that have to do with using modern foreign influences to determine the policy of our laws in a case, which is what we were talking about?

So, when the judiciary attempts to interpret laws they generally try to determine the intent of the laws. Understanding the issues AT THAT TIME that the law was enacted may help them do so if the laws themselves are unclear.

You are aware that sometimes laws are somewhat deficient, especially as time passes, such that interpretation is required. Yes, back to the concept that interpretation is not a mathematical process.

Again, I am not suggesting that modern foreign influences be used as examples to determine a case. Stop being so extremely dense.

Vroom, I must insist you get some education on the issue. What a French court said in 1782 on the issue of “search and seizure” plainly has no bearing on what the concept means to Americans, even if the time frame was concurrent with the Framers.

You continually make stuff up and try and pass it off as fact - there isn’t a line of thinking by the Framers that supports your argument here: why pretend like there is?

I’ve never suggested this line of crap and you damned well know it.

The Framers has no desire to make sure foreign ideas would be incorporated into Constitutional jurispridence. None. Zero. You may want it, that doesn’t make it so.

Sigh. Are you really this much of an idiot? I guess so.

Of course, I sound like neither - I am explaining the problem with trying to incorporate foreign opinions into our jurisprudence.

Unfortunately, I’m not suggesting that foreign opinions be used to determine a case. So, keep on trying to imagine that I am. It really helps!

To which I have stated that that is fine in the context of passing our laws - maybe we like a tax that someone else has enacted.

But does it inform our adjudication of our own sovereign laws? No. There is no principled way to do it, and we don’t want it.

Okay, let’s consider the basic concept of rights and how they originate. Are rights only as delineated specifically or do they exist until stripped away by some type of law?

Or, let’s consider the fact that science can change our understanding of some issues. Do we ignore that new understanding the next time a legal issue involves that new understanding?

No, in both cases, there is the possibility of learning, or awareness, of something new and different, heretofore not generally considered or understood. In such a case, the courts may be forced to interpret the existing laws with respect to applicability to a new situation or understanding.

It might be necessary to investigate the new issue to some level, to consider it, or to try to understand it to some level, in order to make a decision about it.

Nonsense, Vroom - you need to learn to read. You again confuse policymakers with law adjudicators. The US doesn’t try to get a foreign court to make its decisions based on our Bill of Rights or anything like that. Foolishness.

Again, we see your limits.

Again, we see your arrogance. Look, the world changes and evolves. Sometimes, as in the world of science, the change may not originate in the US. However, that change may still result in a case before the courts.

You can always tell when Vroom gets outmanned in argument - he loses sight of the argument and gets upset.

Oh yes, I’m outmanned by the great thunderdolt yet again. Dude, relax your ego, it makes you look like a fool. No, never mind, keep on plugging, it’s kind of humorous.

And this is where Vroom has shown his ass - I just gave you a plain constitutional argument as to a problem with incorporating foreign opinion into law as a Due Process “unfair surprise” issue.

This has a basis in our current law as between states. There are Due Process problems even as someone from New York gets sued in Iowa when he had no legitimated expectation Iowa law would apply to his case. There is a whole line of cases. Courts and scholars have discussed it.

The next level is even more problematic - unfair surprise by way of violating a law where the illegality finds its roots in another sovereign’s version of the law, which comes as a complete shock to the man hauled into court.

Despite this, Vroom dismissed it with a wave of a hand, even though he hasn’t read about it, doesn’t know about it, and can’t even fake an argument that he has heard of it.

I’m dismissing it moron because I am not in fact proposing what you suggest. I’m am suggesting that there are facts, scientific being the easiest to simply hypothesize, that may need to be considered.

If you want to suggest otherwise, then you can go and make the claim yourself, because I am not.

Vroom, do you ever tire of being a fraud? We were having a fine discussion until you, as usual, started the tantrum.

Ahahahaha.

You keep thinking I’m trying to say things I’m not, then declaring me a fraud. I’m not claiming to be the great constitutional expert, I’m suggesting that claims of judicial inventiveness are often overblown as part of a political agenda.

As such, I’m merely suggesting how change can be brought about by the judiciary, or due to changes in society or technology, without the courts acting outside of their role.

That’s all. All the rest are fantasy arguments that you have made up so that you can knock them down.

Go ahead, declare yourself the winner some more, it makes you look “impressive”.

The Due Process problem is a serious problem to overcome - it’s not my problem that you have no idea what the hell I am talking about. But could you do all of us a favor and next time just say “hmmm, I wasn’t aware of that angle - that is interesting”.

If I was proposing what you are arguing against, I would certainly suggest it was a big problem. Strangely, I wouldn’t argue something so stupid, so I don’t see why I have to say anything about it except to tell you, once again, that you are making things up.

Instead, we get your “you’re a crackpot” nonsense. Well, are the Conflict of Law professors and judges who have raised the same issues as me crackpots as well?

Ahahahaha.

I am sure they will be delighted to know that an uninformed Canadian who doesn’t know Due Process from dumbbell sees the problem as nonsense.

Ahahahaha. It’s nonsense to argue about it because I’ve never proposed the issue you are busy decrying.

Correct - and the judiciary is not only a check, but it is duty-bound not to invade the province of the other branches. Period.

A judiciary cannot, as a matter of wanting to check a legislature it disagrees with, create that “check” if doing so violates the separation-of-powers.

Maybe you should consider the fact that you state “correct” a fair amount. It might clue you in that I’m not off on some loony tangent making the wild suggestions you think I am.

I honestly hope you know more about your own constitution than I do, but holy shit man, you need to stop inventing some strange viewpoint so that you can attack it.

Heh. Are you seriously - seriously - with a straight face thinking you know more about the American constitution and are educating me on its reach and history?

Seriously, Vroom?

No - seriously?

Vroom, you don’t have a clue about teh Founding Fathers and their aims, you don’t have a clue about US constitutional history, and you have no idea as to the most basic mechanics of separation-of-powers.

Are you even paying attention? I was suggesting you’d know a lot more than I would, but that you should stop making up a fictitious argument on my behalf so that you could knock it down.

Perhaps, if you paid attention to the tiny point I am trying to make, you’d realize I am not as clueless as you seem to assume. You might also come across a little less arrogant.

I have to ask again - seriously?

Why do you think anyone bothers believing your condescending jibberish anymore, Vroom? How can I “look foolish” when it is clear I know more about the topic than you probably ever will?

Yeah, you look foolish because you are making up a viewpoint that I have never expressed so that you can lord about your presumed superior knowledge about issues I’ve never raised or suggested.

That isn’t a statement of arrogance - people are free to disagree with me based on what they have learned. But to suggest my opinions are “foolish”, well, Vroom, isn’t the act over?

Why do you keep trying?

Although, we can take a vote - who else thinks my approach to this is “foolish”? I am all ears.

LOL.

Oh, and nice job - we were having a fine discussion on the points until the tantrum came out. What’s the count of ruined threads up to now, big guy?

There is no tantrum at all, unless the diatribe about your superiority above qualifies as one?

You don’t look foolish because of your knowledge on the subject… but you do look very damned foolish.[/quote]

And you tried to portray me as over-emotional and “frothing?” What is wrong with you man? You make a point to discredit my posts in such a way, but a few posts later you’re calling people names. Settle down there fella, some of that froth might drip down onto your keyboard. Heh, this is too good.

[Sloth]

[quote]vroom wrote:
Y’know, it occurs to me that if gay individuals want to get married, that they should simply create a new sect of Christianity, let’s say “Gay Christianity”, which allows gay marriages…[/quote]

There are Gays married under the umbrella of Christianity.

[Sloth]

Anyways, a recent win for the Boy Scouts against their arch-nemesis, the ACLU.

[i]Wednesday, April 04, 2007

Court: 2010 Jamboree can go forward

Irving, TX / April 4, 2007
Boy Scouts of America is pleased that the United States Court of Appeals for the Seventh Circuit dismissed the ACLU’s lawsuit against the Department of Defense for supporting the National Scout Jamboree. (Click here to read opinion) Boy Scouts of America is grateful also for the efforts of the Department of Justice in achieving this successful outcome.

For more than 25 years, Boy Scouts have held the National Scout Jamboree every four years at Fort A.P. Hill near Fredericksburg, Virginia. Scouts from all over the country camp together for ten days and participate in activities emphasizing physical fitness, appreciation of the outdoors, and patriotism. Seven Presidents have attended the Jamboree since President Franklin D. Roosevelt in 1937. The Jamboree grounds at Fort A.P. Hill are open to the public, and an estimated 300,000 visitors attended in 2005 along with 43,000 Scouts and their leaders. The 2010 Jamboree will celebrate the 100th Anniversary of Boy Scouts of America.

The United States Congress has found that the military’s logistical support for the National Scout Jamboree is an incomparable training opportunity for our armed forces. The Jamboree requires the construction, maintenance, and disassembly of a tent city capable of supporting tens of thousands of people for a week or longer.

Nevertheless, the ACLU sued the Department of Defense in 1999 over its support for the Jamboree. In 2005, a federal district court in Chicago concluded the Jamboree statute (10 U.S.C. § 2554) was unconstitutional under the Establishment Clause because Scouting has a nonsectarian duty to God requirement. DoD appealed the district court’s injunction against military support under that statute for the 2010 Jamboree.

In today’s ruling, the federal Court of Appeals in Chicago reversed the district court’s decision, concluding that the taxpayers named as the plaintiffs in the lawsuit did not have standing to sue DoD in the first place.

“We are pleased that today’s ruling preserves the training opportunity for the military that Congress wanted it to have,” said Robert H. Bork, Jr., spokesperson for the Scouts.

“Today’s decision allows everyone to get back to planning the centennial Jamboree celebrating Boy Scouts�?? 100th birthday,” said George A. Davidson, the attorney for Boy Scouts of America who argued before the Seventh Circuit last year.

The case is Winkler v. Gates, No. 05-3451 (7th Cir. Apr. 4, 2007).
Legal | Scouting America

Back in January they Won against them too. The case concerned recruitment in schools.

[i]Scouts win in Oregon Supreme Court
The Boy Scouts of America issued the following statement today:

Boy Scouts of America welcomes today�??s decision from the Oregon Supreme Court declaring that the Portland Public School District did not discriminate against an atheist student by permitting Boy Scouts to make presentations and distribute informational flyers.

An atheist mother represented by the ACLU complained that allowing Boy Scouts to recruit in public schools on the same basis as other groups discriminated against her atheist son who attends Portland public schools. In today�??s decision reversing a lower court decision, the Oregon Supreme Court emphatically concluded that �??nothing that occurred in any public school program, service, or activity was discriminatory at all.�??

�??Giving Boy Scouts equal access is not discrimination,�?? said Scouting spokesperson Robert H. Bork, Jr., �??it is the law.�??

�??The First Amendment and two federal statues require that Boy Scouts be given the same access to school facilities as other youth or community organizations,�?? said Boy Scouts�?? attorney George A. Davidson. If the lower court�??s decision had been upheld, �??every school district in Oregon would have been in jeopardy of losing federal funding.�??[/i]

From their site.

Legal

[vroom]

[quote]Sloth wrote:
And you tried to portray me as over-emotional and “frothing?” What is wrong with you man? You make a point to discredit my posts in such a way, but a few posts later you’re calling people names. Settle down there fella, some of that froth might drip down onto your keyboard. Heh, this is too good.[/quote]

LOL.

Thunderdolt and I always get into heated frothfests. Get out the popcorn!

[vroom]

[quote]Sloth wrote:
There are Gays married under the umbrella of Christianity.[/quote]

I’m implying that if they founded a religion then it would be very difficult for the country to try to interfere with their right to practice that religion.

After all, we have the mormons, the scientologists and so forth, which of course have to be tolerated. All they have to do is write up a new book and follow its teachings…

It would be pretty easy to load up an electronic version of the Bible and edit out all the portions that can be interpreted as saying bad things about gays and lesbians.

Publishing it on the Internet would probably allow the X% of the population that is gay to convert instantaneously simply by continuing to live as Christians…