ISF Logo   IS Forum
Forum Index Register Members List Events Mark Forums Read Help

Go Back   International Skeptics Forum » General Topics » USA Politics
 


Welcome to the International Skeptics Forum, where we discuss skepticism, critical thinking, the paranormal and science in a friendly but lively way. You are currently viewing the forum as a guest, which means you are missing out on discussing matters that are of interest to you. Please consider registering so you can gain full use of the forum features and interact with other Members. Registration is simple, fast and free! Click here to register today.
Tags supreme court cases , supreme court decisions

Reply
Old 12th July 2019, 10:34 PM   #1
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
What the Supreme Court has been up to in 2019

I don't normally post links to YouTube (other than for songs or short snippets) but this guy gives some really easy to understand explanations and only took 20 minutes to do so.

He listed the following SCOTUS rulings in 2019:
  • Allowing "profane" trademarks.
  • Extending the ban on racist jury selections.
  • Preventing citizenship questions from being asked in a census.
  • Preventing federal judges from dealing with gerrymandering issues.
  • Affirming the "separate sovereigns" doctrine which allows a person to be charged twice for the same crime: once by the state and again in a federal jurisdiction. The rationale is that the double jeopardy clause bars successive prosecutions for the same offense; not for the same conduct (tricky, tricky). This also means that anybody pardoned by Donald Trump could still be tried in a state court for the same "conduct".
  • Allowing police to take blood samples from an unconscious person.
  • Allowing the Bladenburg peace cross to remain.
YouTube Video This video is not hosted by the ISF. The ISF can not be held responsible for the suitability or legality of this material. By clicking the link below you agree to view content from an external website.
I AGREE
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th July 2019, 08:28 AM   #2
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
This has been a particularly difficult term to read commentary about. I have a rule. When an article arguing what a decision should or shouldn't be starts to argue the consequences of a decision, I stop reading. The quality of a supreme Court decision is divorced from it's consequences.

Last edited by BobTheCoward; 13th July 2019 at 08:29 AM.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th July 2019, 09:56 AM   #3
theprestige
Penultimate Amazing
 
Join Date: Aug 2007
Posts: 36,878
Originally Posted by BobTheCoward View Post
This has been a particularly difficult term to read commentary about. I have a rule. When an article arguing what a decision should or shouldn't be starts to argue the consequences of a decision, I stop reading. The quality of a supreme Court decision is divorced from it's consequences.
This is one of the few contexts in which I agree with your general approach.

Specifically for the courts - especially the Supreme Court! - it is vital that the court rule on the law as it is, not on the law as they wish it to be.
theprestige is online now   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th July 2019, 10:18 AM   #4
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by BobTheCoward View Post
This has been a particularly difficult term to read commentary about. I have a rule. When an article arguing what a decision should or shouldn't be starts to argue the consequences of a decision, I stop reading. The quality of a supreme Court decision is divorced from it's consequences.
This is just a list of SC decisions. Which one(s) is arguing about the consequences?
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th July 2019, 11:17 AM   #5
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
This is just a list of SC decisions. Which one(s) is arguing about the consequences?
I'm saying when I read commentary about these, I can't throw a rock without hitting one saying the decision is good/bad because of the consequences.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th July 2019, 12:26 PM   #6
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by BobTheCoward View Post
I'm saying when I read commentary about these, I can't throw a rock without hitting one saying the decision is good/bad because of the consequences.
You must be thinking of an external source because nothing in this thread says a "decision is good/bad because of the consequences".
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th July 2019, 12:39 PM   #7
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
You must be thinking of an external source because nothing in this thread says a "decision is good/bad because of the consequences".
I said it was external sources. That was the commentary I referred to in my post.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th July 2019, 09:06 PM   #8
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by BobTheCoward View Post
I said it was external sources. That was the commentary I referred to in my post.
I don't see a problem with discussing a SC decision. They seem to be mostly majority rulings anyway which suggests that they are not strictly "legal" rulings.
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th July 2019, 10:01 PM   #9
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
I don't see a problem with discussing a SC decision. They seem to be mostly majority rulings anyway which suggests that they are not strictly "legal" rulings.
I don't have a problem with it either. My point was far more specific than that.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 13th July 2019, 11:56 PM   #10
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by BobTheCoward View Post
My point was far more specific OT than that.
ftfy.
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 14th July 2019, 06:06 AM   #11
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
ftfy.
I don't go to occupational therapy.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 15th July 2019, 04:35 AM   #12
Border Reiver
Philosopher
 
Border Reiver's Avatar
 
Join Date: Sep 2011
Posts: 6,646
Originally Posted by psionl0 View Post
I don't see a problem with discussing a SC decision. They seem to be mostly majority rulings anyway which suggests that they are not strictly "legal" rulings.
How does a majority ruling suggest that it is not a legal ruling?

And if the Supreme Court is not issuing a legal ruling, what is it issuing?
__________________
Questions, comments, queries, bitches, complaints, rude gestures and/or remarks?
Border Reiver is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 15th July 2019, 09:17 PM   #13
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by Border Reiver View Post
How does a majority ruling suggest that it is not a legal ruling?

And if the Supreme Court is not issuing a legal ruling, what is it issuing?
If they were interpreting the constitution strictly on a legal basis then most of the rulings would be unanimous. Instead, the judges rule on what they think the constitution should say. Some even say that the constitution is a "living breathing" document !? It is called "judicial activism".

That is why Trump's stacking the SC with ultra conservatives is such a big issue.
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 05:10 AM   #14
Border Reiver
Philosopher
 
Border Reiver's Avatar
 
Join Date: Sep 2011
Posts: 6,646
Originally Posted by psionl0 View Post
If they were interpreting the constitution strictly on a legal basis then most of the rulings would be unanimous. Instead, the judges rule on what they think the constitution should say. Some even say that the constitution is a "living breathing" document !? It is called "judicial activism".

That is why Trump's stacking the SC with ultra conservatives is such a big issue.
Disagree.

If an issue gets to the SC, then the meaning of the law is generally not clear, or the law can be applied to the facts in several ways - this by its very nature means that unanimous decisions at that level will not be the norm regardless of the political makeup of the court. The legal literalism or originalism models used by many US jurists are, to me, a method of ensuring that inequalities become entrenched and far more difficult and socially costly to rectify.

Viewing the law as a framework on which society is built rather than as walls to confine it seems a better way to evolve a society better suited to ensuring "life, liberty and the pursuit of happiness", but that's my own opinion.

Now in the interests of full disclosure, as a Canadian legal professional I am trained in the Canadian legal tradition that views the law as a "living tree" - something that grows and evolves over time to meet the needs of society, not as a static jacket that society has to fit into.
__________________
Questions, comments, queries, bitches, complaints, rude gestures and/or remarks?
Border Reiver is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 05:40 AM   #15
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by Border Reiver View Post
Disagree.

If an issue gets to the SC, then the meaning of the law is generally not clear, or the law can be applied to the facts in several ways - this by its very nature means that unanimous decisions at that level will not be the norm regardless of the political makeup of the court. The legal literalism or originalism models used by many US jurists are, to me, a method of ensuring that inequalities become entrenched and far more difficult and socially costly to rectify.

Viewing the law as a framework on which society is built rather than as walls to confine it seems a better way to evolve a society better suited to ensuring "life, liberty and the pursuit of happiness", but that's my own opinion.

Now in the interests of full disclosure, as a Canadian legal professional I am trained in the Canadian legal tradition that views the law as a "living tree" - something that grows and evolves over time to meet the needs of society, not as a static jacket that society has to fit into.
Do you agree that the 5th amendment applies only to "self incrimination" and not testifying against yourself in general? Do you agree that the "separate sovereigns doctrine" outweighs the double indemnity clause in the constitution? Do you agree that property can be charged with a crime and therefore no due process is necessary to separate it from its owner? None of these "Simon says" interpretations are written into the constitution but the Judges don't care as long as they can override the protections given to individuals by the constitution.

You are conflating "THE LAW" with constitutional law. Obviously, common law will evolve case by case. It is not the most ideal way to advance law but there is no other way since it is impossible to foresee what cases will come up in the future. Similarly, many laws passed by parliament/congress are so badly worded that judges have no option but to apply their own pet interpretations to what they deal with.

The constitution ought to be different. It is the property of the people and any changes to it should be authorized by the people. Judges should have no business using their personal prejudices to reinvent the constitution. Unfortunately, politicians know too well that it is easier to stack the SC with "judicial activists" than to get the constitution changed.
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 06:30 AM   #16
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
Do you agree that the 5th amendment applies only to "self incrimination" and not testifying against yourself in general? Do you agree that the "separate sovereigns doctrine" outweighs the double indemnity clause in the constitution? Do you agree that property can be charged with a crime and therefore no due process is necessary to separate it from its owner? None of these "Simon says" interpretations are written into the constitution but the Judges don't care as long as they can override the protections given to individuals by the constitution.

You are conflating "THE LAW" with constitutional law. Obviously, common law will evolve case by case. It is not the most ideal way to advance law but there is no other way since it is impossible to foresee what cases will come up in the future. Similarly, many laws passed by parliament/congress are so badly worded that judges have no option but to apply their own pet interpretations to what they deal with.

The constitution ought to be different. It is the property of the people and any changes to it should be authorized by the people. Judges should have no business using their personal prejudices to reinvent the constitution. Unfortunately, politicians know too well that it is easier to stack the SC with "judicial activists" than to get the constitution changed.
What about when there isn't a Constitutional issue involved like the census case?
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 07:41 AM   #17
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by BobTheCoward View Post
What about when there isn't a Constitutional issue involved like the census case?
More information required.
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 07:47 AM   #18
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
More information required.
The census case didn't have a Constitutional component (outside of the standing question). Is that judicial activism or standard common law?

Also, are you saying they are all judicial activists on Constitutional issues?
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 08:56 AM   #19
Border Reiver
Philosopher
 
Border Reiver's Avatar
 
Join Date: Sep 2011
Posts: 6,646
Originally Posted by psionl0 View Post
Do you agree that the 5th amendment applies only to "self incrimination" and not testifying against yourself in general? Do you agree that the "separate sovereigns doctrine" outweighs the double indemnity clause in the constitution? Do you agree that property can be charged with a crime and therefore no due process is necessary to separate it from its owner? None of these "Simon says" interpretations are written into the constitution but the Judges don't care as long as they can override the protections given to individuals by the constitution.
Many aspects of the US legal system are ridiculous to me - the "separate sovereigns" doctrine is a good example. Canada has ONE set of criminal law for the entire country - unlike the US where each state has its own criminal law, and the Federal government has a separate criminal law, and it is long established law (confirmed by our Supreme Court) that you can only be charged once for the same set of facts.

As for the protections against self incrimination guaranteed by the 5th Amendment, those have been narrowly interpreted by your courts in their application - this is a function of what courts do - interpret the law. For example, s.13 of the Canadian Charter of Rights and Freedoms (similar to your 5th Amendment) has been interpreted much more broadly by our courts. Both Canadian and US law have the same roots, and even though they are starting from the same point get different results even though they apply the same processes, bringing me back to my original post that expecting unanimity in judicial decisions is unrealistic.

The idea that property can be charged with an offence separately from the owner is another ridiculous aspect of US law - only legal persons can be charged with offences up here and legal persons has been confirmed by the courts as human beings or corporations (for contractual purposes or for regulatory purposes only). The issue down in the US seems to be that your legislatures, having defined "civil forfeiture" laws rather loosely, apparently meet the requirement of "due process of law" required under the US Constitution to deprive your citizens of their property. This is definitely an issue where following the strict wording of the US Constitution has led to a situation that is patently ridiculous on its face, but deemed constitutional and because of the revenue that comes into the state as a result, there is no incentive to legislatively change.


Quote:
You are conflating "THE LAW" with constitutional law. Obviously, common law will evolve case by case. It is not the most ideal way to advance law but there is no other way since it is impossible to foresee what cases will come up in the future. Similarly, many laws passed by parliament/congress are so badly worded that judges have no option but to apply their own pet interpretations to what they deal with.
The Constitution is the LAW - it is the foundational, or first law that gives a basis for the rest of the structure to be built on. It is not separate from the rest of legal system.

The Constitution also falls into this category of "laws so badly worded that judges have no options but to apply their professional insight and understanding of the law to them." Or are you going to argue that the 2nd Amendment is clearly worded with no possible alternate interpretation? Or the similarly undefined phrase "natural born citizen" that caused so much wasted judicial time in the previous administration.

Quote:
The constitution ought to be different. It is the property of the people and any changes to it should be authorized by the people. Judges should have no business using their personal prejudices to reinvent the constitution. Unfortunately, politicians know too well that it is easier to stack the SC with "judicial activists" than to get the constitution changed.
Let's start off that not only the Constitution, but the entirety of the law is property of the people - and that if the law as written is in contravention of the Constitution then it is the job of the courts to resolve the conflict between the two. That's not judicial activism, that's doing the job the courts are established to do.
__________________
Questions, comments, queries, bitches, complaints, rude gestures and/or remarks?
Border Reiver is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 12:30 PM   #20
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by Border Reiver View Post
Many aspects of the US legal system are ridiculous to me - the "separate sovereigns" doctrine is a good example. Canada has ONE set of criminal law for the entire country - unlike the US where each state has its own criminal law, and the Federal government has a separate criminal law, and it is long established law (confirmed by our Supreme Court) that you can only be charged once for the same set of facts.

As for the protections against self incrimination guaranteed by the 5th Amendment, those have been narrowly interpreted by your courts in their application - this is a function of what courts do - interpret the law. For example, s.13 of the Canadian Charter of Rights and Freedoms (similar to your 5th Amendment) has been interpreted much more broadly by our courts. Both Canadian and US law have the same roots, and even though they are starting from the same point get different results even though they apply the same processes, bringing me back to my original post that expecting unanimity in judicial decisions is unrealistic.

The idea that property can be charged with an offence separately from the owner is another ridiculous aspect of US law - only legal persons can be charged with offences up here and legal persons has been confirmed by the courts as human beings or corporations (for contractual purposes or for regulatory purposes only). The issue down in the US seems to be that your legislatures, having defined "civil forfeiture" laws rather loosely, apparently meet the requirement of "due process of law" required under the US Constitution to deprive your citizens of their property. This is definitely an issue where following the strict wording of the US Constitution has led to a situation that is patently ridiculous on its face, but deemed constitutional and because of the revenue that comes into the state as a result, there is no incentive to legislatively change.




The Constitution is the LAW - it is the foundational, or first law that gives a basis for the rest of the structure to be built on. It is not separate from the rest of legal system.

The Constitution also falls into this category of "laws so badly worded that judges have no options but to apply their professional insight and understanding of the law to them." Or are you going to argue that the 2nd Amendment is clearly worded with no possible alternate interpretation? Or the similarly undefined phrase "natural born citizen" that caused so much wasted judicial time in the previous administration.



Let's start off that not only the Constitution, but the entirety of the law is property of the people - and that if the law as written is in contravention of the Constitution then it is the job of the courts to resolve the conflict between the two. That's not judicial activism, that's doing the job the courts are established to do.
I see no alternative interpretation of the second amendment than mine.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 02:19 PM   #21
Border Reiver
Philosopher
 
Border Reiver's Avatar
 
Join Date: Sep 2011
Posts: 6,646
Originally Posted by BobTheCoward View Post
I see no alternative interpretation of the second amendment than mine.
Since a cowardly Bob is neither a judge or a legislator, his opinion can be ignored by both.
__________________
Questions, comments, queries, bitches, complaints, rude gestures and/or remarks?
Border Reiver is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 04:50 PM   #22
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by Border Reiver View Post
Since a cowardly Bob is neither a judge or a legislator, his opinion can be ignored by both.
That is an easy solution. Put out a question of incredulity, and when someone shows up, ignore them. That is an effective way to maintain your incredulity.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 09:56 PM   #23
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by BobTheCoward View Post
What about when there isn't a Constitutional issue involved like the census case?
Originally Posted by BobTheCoward View Post
The census case didn't have a Constitutional component (outside of the standing question). Is that judicial activism or standard common law?
The constitution requires an "enumeration" every 10 years to determine how many members each state gets in the House of Representatives. That makes census questions a constitutional issue.

Since voting rights apply to citizens (15th and 19th amendments), that makes a ruling that you can't ask if somebody is a citizen in a census a classic case of judicial activism.
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 10:22 PM   #24
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
The constitution requires an "enumeration" every 10 years to determine how many members each state gets in the House of Representatives. That makes census questions a constitutional issue.

Since voting rights apply to citizens (15th and 19th amendments), that makes a ruling that you can't ask if somebody is a citizen in a census a classic case of judicial activism.
There is so much wrong with this starting with the fact that this was about the adminstrative procedures act. The supreme Court was being asked to interpret a federal law, not the Constitution. Not to mention they didn't rule that it can't be asked.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 16th July 2019, 10:37 PM   #25
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by Border Reiver View Post
Many aspects of the US legal system are ridiculous to me - the "separate sovereigns" doctrine is a good example. Canada has ONE set of criminal law for the entire country - unlike the US where each state has its own criminal law, and the Federal government has a separate criminal law, and it is long established law (confirmed by our Supreme Court) that you can only be charged once for the same set of facts.
Australia also has a federal and state governments. However, it doesn't have a bill of rights so double indemnity is not an issue. In the US, the "separate sovereign" doctrines was created to bypass the constitution and this was ratified by the SC. Judicial activism.

Originally Posted by Border Reiver View Post
As for the protections against self incrimination guaranteed by the 5th Amendment, those have been narrowly interpreted by your courts in their application - this is a function of what courts do - interpret the law.
They didn't "interpret the law". They removed the words, "be a witness against himself" and replaced them with "incriminate himself". That is a clear case of amending the constitution. Judicial activism.

Originally Posted by Border Reiver View Post
The idea that property can be charged with an offence separately from the owner is another ridiculous aspect of US law - only legal persons can be charged with offences up here and legal persons has been confirmed by the courts as human beings or corporations (for contractual purposes or for regulatory purposes only). The issue down in the US seems to be that your legislatures, having defined "civil forfeiture" laws rather loosely, apparently meet the requirement of "due process of law" required under the US Constitution to deprive your citizens of their property. This is definitely an issue where following the strict wording of the US Constitution has led to a situation that is patently ridiculous on its face, but deemed constitutional and because of the revenue that comes into the state as a result, there is no incentive to legislatively change.
That is serious reaching there. Not a single word in the constitution permits depriving a person of their property without due process. This "ridiculous aspect of US law" has been created by authorities who are contemptuous of the bill of rights and ratified by the SC in direct contravention of the constitution. Judicial activism.

Originally Posted by Border Reiver View Post
The Constitution also falls into this category of "laws so badly worded that judges have no options but to apply their professional insight and understanding of the law to them." Or are you going to argue that the 2nd Amendment is clearly worded with no possible alternate interpretation? Or the similarly undefined phrase "natural born citizen" that caused so much wasted judicial time in the previous administration.
Some sections of the constitution may not be as clear as they might otherwise be but not the parts you are referring to here. The second amendment clearly says, "the right of the people to keep and bear Arms, shall not be infringed and the14th amendment clearly says, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside". There is little wriggle room there unless you want to get "creative". The 2nd amendment is certainly controversial but the remedy is to get the constitution changed and not have the SC interpret it away.

Originally Posted by Border Reiver View Post
Let's start off that not only the Constitution, but the entirety of the law is property of the people - and that if the law as written is in contravention of the Constitution then it is the job of the courts to resolve the conflict between the two. That's not judicial activism, that's doing the job the courts are established to do.
That is NOT the job of the courts. The constitution is supposed to be supreme and the courts are supposed to rule whether a law or act is permitted by the constitution. They are not supposed to "resolve the conflict between the two". That is judicial activism.

BTW this is not "my" constitution. I take an interest in this because where issues are common to Australia and the US, Australian authorities often take their cue from what is happening in the US. Stacking the high court with sympathizers is a classic example.
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 17th July 2019, 12:06 AM   #26
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by BobTheCoward View Post
There is so much wrong with this starting with the fact that this was about the adminstrative procedures act. The supreme Court was being asked to interpret a federal law, not the Constitution. Not to mention they didn't rule that it can't be asked.
The administrative procedures act is not subject to the constitution?
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 17th July 2019, 05:04 AM   #27
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
The administrative procedures act is not subject to the constitution?
You are conflating the law with Constitutional law. Something you said people were doing earlier.

They were not being asked to interpret as a matter of Constitutional law. They have both that role, and as the highest court that can adjudicate law questions.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 17th July 2019, 06:28 AM   #28
Border Reiver
Philosopher
 
Border Reiver's Avatar
 
Join Date: Sep 2011
Posts: 6,646
Originally Posted by psionl0 View Post
Australia also has a federal and state governments. However, it doesn't have a bill of rights so double indemnity is not an issue. In the US, the "separate sovereign" doctrines was created to bypass the constitution and this was ratified by the SC. Judicial activism.
Given the way that the US defines the rights and protections given by its constitution, the "separate sovereign" doctrines isn't judicial activism, its a feature of US law. This is the same country where a State can pass laws restricting activities legal in other states, or keep restrictions on constitutionally guaranteed rights because the wording in the Constitution is "Congress shall make no law" has been interpreted to not include state governments - meaning for example that voting rights can be removed from certain persons who share identical characteristics in one state, but not in others.

That's not a bug, that's a feature of the US system of government structure whereby each State can act as if its a mini country.

Quote:
They didn't "interpret the law". They removed the words, "be a witness against himself" and replaced them with "incriminate himself". That is a clear case of amending the constitution. Judicial activism.
Odd the original wording is still there.

That being said, it is an interpretation of the law that equated "be a witness against himself" with "incriminate himself."

Quote:
That is serious reaching there. Not a single word in the constitution permits depriving a person of their property without due process. This "ridiculous aspect of US law" has been created by authorities who are contemptuous of the bill of rights and ratified by the SC in direct contravention of the constitution. Judicial activism.
You're not going to get an objection here - the legal process used to deprive people of their lawful property is an abomination, particularly in a society that values the individual ownership of property.

That being said, the laws concerning civil forfeiture ARE considered to be "due process" and thus compliant with the Bill of Rights. If you're playing for "strict reading of the law" game, then the "due process" afforded to the property is not in contravention of the US Constitution, as the process set out by the legislature has been followed, meaning that its confiscation is perfectly constitutional. The fact that this process is completely against the spirit of the Constitution is irrelevant, it falls within the wording of the Constitution as written.

Quote:
Some sections of the constitution may not be as clear as they might otherwise be but not the parts you are referring to here. The second amendment clearly says, "the right of the people to keep and bear Arms, shall not be infringed and the14th amendment clearly says, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside". There is little wriggle room there unless you want to get "creative". The 2nd amendment is certainly controversial but the remedy is to get the constitution changed and not have the SC interpret it away.
If you're going to quote a law, or a section of a Constitution, quote the entire thing, or don't bother. You are ignoring the first part of 2A which concerns itself with a well regulated militia. Given that, even at the time of the writing of the US Constitution, a militia was a body of people controlled by the government for military purposes and the regulating of a militia would organization, training and equipping of said body, it could easily have been interpreted that the 2A was a tool to ensure that no citizen could be barred from carrying arms in the service of the state, provided they were members of the militia and subject to its regulations.

It however has not been interpreted that way - it was interpreted as a means of guaranteeing individual ownership of weapons without state interference by looking solely at a portion of the article. That is judicial activism, but it is also consistent with the role of courts to interpret the law.

The part that is often overlooked is that, regardless of phrase "shall not be infringed" the states DO impose restrictions on not only who can bear arms, but also the type and when and how it is permissible to do so.

WRT the natural born citizen arguments, they've required interpretation on multiple occasions - most recently when they've been tried to exclude the previous POTUS (unsuccessfully) from his eligibility for office.

Quote:
That is NOT the job of the courts. The constitution is supposed to be supreme and the courts are supposed to rule whether a law or act is permitted by the constitution. They are not supposed to "resolve the conflict between the two". That is judicial activism.
Perhaps I'm not being clear.

Courts are there to resolve matters of law. Matters of law are based on several factors:

a. The Legislation (yes, this includes the Constitution); and
b. The facts at hand.

The resolution of the two is done by the two sides of the legal dispute presenting arguments that best make their case - judges then take the arguments and apply them to the factors to decide which interpretation is correct. The court can apply their own legal reasoning to determine what weight is to be given to each, and to what the ultimate outcome will be. then lower courts can use this decision to guide their own processes and it is up to those courts as to whether a decision gets a narrow or a wide interpretation.

The role of the courts is to rule on the matters brought before them -and they don't get to impose facts not brought before them into the matter. They are limited to dealing with the facts brought before them by the parties and apply the law to those facts. The courts don't get to go out and look at facts not entered as that is not how common law legal systems are structured - that is for courts based on a more inquisitorial model where the judges have a role in questioning of the parties and in the determination of the facts, common in mainland Europe but not in the Commonwealth. Having a judge go out and seek evidence not entered by the parties to an action would definitely be judicial activism.

Determining which side of the legal argument prevails, based on the law, arguments of the two sides and the facts is not judicial activism.

Quote:
BTW this is not "my" constitution. I take an interest in this because where issues are common to Australia and the US, Australian authorities often take their cue from what is happening in the US. Stacking the high court with sympathizers is a classic example.
Canadian Courts used to do that as well, for a few years after the Charter had been introduced. We've pretty much stopped doing that as we've built up a significant body of native jurisprudence.
__________________
Questions, comments, queries, bitches, complaints, rude gestures and/or remarks?
Border Reiver is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 17th July 2019, 07:07 AM   #29
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
While talking about the peace cross and Constitution literalism....

How about that Thomas opinion? Saying that it only violates the establishment clause if it is a law passed by a legislature. I love it.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 17th July 2019, 09:46 PM   #30
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by Border Reiver View Post
Given the way that the US defines the rights and protections given by its constitution, the "separate sovereign" doctrines isn't judicial activism, its a feature of US law.
I'm not saying that "separate sovereigns" doesn't exist nor that it is a bad thing. But when something that is not spelled out in the constitution nullifies something that is written in black and white then we have dishonest judges.

Originally Posted by Border Reiver View Post
Odd the original wording is still there.
Is that what a lawyer calls a clever riposte?

Originally Posted by Border Reiver View Post
That being said, it is an interpretation of the law that equated "be a witness against himself" with "incriminate himself."
And you immediately contradict yourself. It is another example of judicial dishonesty where because they read the constitution using different words, suddenly in some circumstances you can be compelled to be a witness to yourself.

Originally Posted by Border Reiver View Post
That being said, the laws concerning civil forfeiture ARE considered to be "due process" and thus compliant with the Bill of Rights.

Do you really think that the police simply confiscating property (without even a court order) and forcing the victim to launch expensive legal action to try to recover it constitutes "due process"?

Originally Posted by Border Reiver View Post
If you're going to quote a law, or a section of a Constitution, quote the entire thing, or don't bother. You are ignoring the first part of 2A which concerns itself with a well regulated militia.
Yes, that part could pave the way for some really creative interpretations of that amendment. Or it could be nothing but a justification that doesn't modify the right in any way. The second amendment should have been written so that undesirable types can be barred from bearing arms instead of relying on courts to invent that inference.

Originally Posted by Border Reiver View Post
WRT the natural born citizen arguments, they've required interpretation on multiple occasions - most recently when they've been tried to exclude the previous POTUS (unsuccessfully) from his eligibility for office.
When judges regard the constitution as alterable in any way they see fit to interpret it, it encourages silly law suits.

Originally Posted by Border Reiver View Post
The role of the courts is to rule on the matters brought before them -and they don't get to impose facts not brought before them into the matter.
Reading the constitution is not "imposing facts".
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975

Last edited by psionl0; 17th July 2019 at 09:47 PM.
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 18th July 2019, 05:52 AM   #31
Border Reiver
Philosopher
 
Border Reiver's Avatar
 
Join Date: Sep 2011
Posts: 6,646
Originally Posted by psionl0 View Post
I'm not saying that "separate sovereigns" doesn't exist nor that it is a bad thing. But when something that is not spelled out in the constitution nullifies something that is written in black and white then we have dishonest judges.
And when something is not spelled out in unambiguous language it needs to be defined, either by legal tradition and precedent or by writing a better law - the US constitution could likely stand a re-write to clarify certain ambiguities that while not ambiguous to the authors have definitely become so.

Quote:
Is that what a lawyer calls a clever riposte?
Apparently my sarcastic tone did not convey itself in the written word.

Quote:
And you immediately contradict yourself. It is another example of judicial dishonesty where because they read the constitution using different words, suddenly in some circumstances you can be compelled to be a witness to yourself.
Synonyms - they exist.

Unlike many pieces of legislation the US Constitution does not have a section that defines terms and compels us to rely on dictionaries to determine the meaning of words - meaning that if a word has multiple meanings the persons interpreting what is meant may select a different meaning than what someone else may choose. In other words, the US courts have narrowly defined testimony to only include incriminating testimony, instead of more broadly to include any testimony.

Up here in Soviet Canuckistan the courts have taken a more restrictive meaning to the same phrase, meaning that you don't have to testify at all against yourself, and outside of a Summary Trial in the CAF, cannot be compelled to do so. The US does it differently - which is not surprising given that, although it shares a common root with the Canadian system, has evolved differently since the successful treason of 1783.

Quote:

Do you really think that the police simply confiscating property (without even a court order) and forcing the victim to launch expensive legal action to try to recover it constitutes "due process"?
You missed the part where I said the process was an abomination?

Do I think that it makes sense, either morally, logically or legally? No.

Do I think its bad law? Yes.

It doesn't matter what I think about the process, and frankly, your opinion carries the same weight as mine, what matters are the opinions of 51 sets of legislators, plus the legislators in the overseas possessions of the US and their courts. Those legislators have set up systems for the executive branch to do this and their courts have deemed it constitutionally acceptable.

In other words, two people not part of the US system find it unacceptable, but the three branches of the US government find that it is acceptable and constitutional, so unless the people who control the US government make it a priority to change this situation, we get to keep on thinking that the US is urinating all over their property and constitutional rights.

Quote:
Yes, that part could pave the way for some really creative interpretations of that amendment. Or it could be nothing but a justification that doesn't modify the right in any way. The second amendment should have been written so that undesirable types can be barred from bearing arms instead of relying on courts to invent that inference.
Given that my point was that poorly written laws or constitutions require interpretations by courts, I'll put you down as "agreeing in principle" that a poorly written section needs to be clarified.

If its not going to be done legislatively, then it needs be done judicially

Quote:
When judges regard the constitution as alterable in any way they see fit to interpret it, it encourages silly law suits.
When people view any guide for behaviour as unalterable, rigid and inflexible it will break rather than bend - in other words, the Constitution is not a text that can only be interpreted one way and one way only - it is a document written by people and interpreted by people, and expecting that everyone look at a piece of legislation with numerous ambiguities is akin to expecting everyone to interpret a religious text in the same way, or to feel the same way about a piece of literature.

And its not just the judges' view that you need to consider. It is the US people's Constitution - they are the ones that interpret what it means to them.

Quote:
Reading the constitution is not "imposing facts".
Judges do more than just read the constitution, they are expected to apply the constitution to the facts of the case at bar, and to apply their experience and knowledge to cases where the facts of a case do not fit within the exact wording of the Constitution, or that wording can be interpreted in multiple ways.
__________________
Questions, comments, queries, bitches, complaints, rude gestures and/or remarks?
Border Reiver is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 18th July 2019, 09:51 AM   #32
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by Border Reiver View Post
In other words, the US courts have narrowly defined testimony to only include incriminating testimony, instead of more broadly to include any testimony.
No matter what legalistic trickery is employed, there is no way that you can convince me that the constitution endorses double jeopardy, compelling somebody to be a witness against themselves (even if incrimination is not an issue) or seizure of property without any process whatsoever.

Any obfuscation on these issues comes from lawyers and judges who don't like those provisions.
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 18th July 2019, 10:46 AM   #33
Border Reiver
Philosopher
 
Border Reiver's Avatar
 
Join Date: Sep 2011
Posts: 6,646
Originally Posted by psionl0 View Post
No matter what legalistic trickery is employed, there is no way that you can convince me that the constitution endorses double jeopardy, compelling somebody to be a witness against themselves (even if incrimination is not an issue) or seizure of property without any process whatsoever.

Any obfuscation on these issues comes from lawyers and judges who don't like those provisions.
Those lawyers and judges are using the wording of the constitution to subvert the intent of the constitution!

I recognize you don't like it and think that these are perverse rulings and you know what - I've been agreeing with you that they are perverse rulings! That being said, not all rulings that you consider to be perverse are.

ie. there are those who consider Roe v. Wade, or Loving v. Virginia, or Obergefell perverse and a subversion of the Constitution and feel that the court overstepped its bounds and stretched the meaning of the Constitution to reach the decisions in those cases.

I'm certain that Marbury v. Madison was dangerous judicial overreach and the result of an activist court has been argued before. And if that decision had been different we wouldn't be having this conversation, since US courts wouldn't have the ability to judicially review the constitutionality of law. And of course then any unconstitutional law could only be dealt with legislatively.
__________________
Questions, comments, queries, bitches, complaints, rude gestures and/or remarks?
Border Reiver is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 19th July 2019, 12:30 AM   #34
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Originally Posted by Border Reiver View Post
Those lawyers and judges are using the wording of the constitution to subvert the intent of the constitution!
Another clever riposte sarcastic tone.
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 19th July 2019, 05:02 AM   #35
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
No matter what legalistic trickery is employed, there is no way that you can convince me that the constitution endorses double jeopardy, compelling somebody to be a witness against themselves (even if incrimination is not an issue) or seizure of property without any process whatsoever.

Any obfuscation on these issues comes from lawyers and judges who don't like those provisions.
What do you think of Thomas? His cross opinion seems up your alley.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 19th July 2019, 09:17 AM   #36
psionl0
Skeptical about skeptics
 
psionl0's Avatar
 
Join Date: Sep 2010
Location: 3157'S 11557'E
Posts: 14,683
Who is "Thomas"?
__________________
"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975
psionl0 is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 19th July 2019, 10:47 AM   #37
Border Reiver
Philosopher
 
Border Reiver's Avatar
 
Join Date: Sep 2011
Posts: 6,646
Originally Posted by psionl0 View Post
Who is "Thomas"?
He's a cheeky blue tank engine with a short stumpy boiler and a short stumpy dome....

Sorry, couldn't resist.
__________________
Questions, comments, queries, bitches, complaints, rude gestures and/or remarks?
Border Reiver is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 19th July 2019, 08:24 PM   #38
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by psionl0 View Post
Who is "Thomas"?
What is this trick question?
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 20th July 2019, 08:20 PM   #39
Delphic Oracle
Illuminator
 
Delphic Oracle's Avatar
 
Join Date: Sep 2016
Posts: 3,368
Originally Posted by psionl0 View Post
The constitution requires an "enumeration" every 10 years to determine how many members each state gets in the House of Representatives. That makes census questions a constitutional issue.

Since voting rights apply to citizens (15th and 19th amendments), that makes a ruling that you can't ask if somebody is a citizen in a census a classic case of judicial activism.
The Constitution requires this census to be based on "counting the whole number of persons in each State", not citizens.

You hopped from representation to voting rights, those are two distinct issues.

Ruling that the government can compel you by law to report your citizenship status to them for a process that does not require citizenship data to function would be quite activist and against the principles of the Constitution.

The government (supposedly) must have a compelling social interest and present convincing reason that the method chosen is the least onerous and burdensome. Attaching a citizenship question to the census fails both of these.

There may be a good argument for the government wanting citizenship status data and there may be less burdensome ways to get it, but it can't do it through the census.

Last edited by Delphic Oracle; 20th July 2019 at 08:22 PM.
Delphic Oracle is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Old 20th July 2019, 09:06 PM   #40
BobTheCoward
Penultimate Amazing
 
Join Date: Nov 2010
Posts: 17,177
Originally Posted by Delphic Oracle View Post
There may be a good argument for the government wanting citizenship status data and there may be less burdensome ways to get it, but it can't do it through the census.
That is not what the Court ruled. That was not the question they answered.
BobTheCoward is offline   Quote this post in a PM   Nominate this post for this month's language award Copy a direct link to this post Reply With Quote Back to Top
Reply

International Skeptics Forum » General Topics » USA Politics

Bookmarks

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Forum Jump


All times are GMT -7. The time now is 01:31 PM.
Powered by vBulletin. Copyright ©2000 - 2019, Jelsoft Enterprises Ltd.

This forum began as part of the James Randi Education Foundation (JREF). However, the forum now exists as
an independent entity with no affiliation with or endorsement by the JREF, including the section in reference to "JREF" topics.

Disclaimer: Messages posted in the Forum are solely the opinion of their authors.