The Dangers of Legislative Activism

[cquark]

Why do we never hear about the dangers of legislative activitism thwarting the intent of the Consitution?

While the article doesn't call it that, we can read about the extraordinarily dangerous and foolish support of legislative activisim from the Palm Beach Post report on a meeting between key legislators and the Christian Coalition:

Reportedly, such leaders as the Rev. Jerry Falwell and Republican Rep. John Hostettler of Indiana, flush with what they see as a successful right-wing revolution, believe they can make the federal courts virtually powerless.

Rep. Hostettler, addressing a special legislative briefing of the Christian Coalition last month in Washington, reportedly talked at length about a bill he plans to introduce. It would deny federal courts the right to hear cases challenging the Defense of Marriage Act, which bans same-sex marriage.

"Congress controls the federal judiciary," Rep. Hostettler was quoted as saying. "If Congress wants to, it can refer all cases to the state courts. Congress can say the federal courts have limited power to enforce their decision."

Apparently, the Hoosier congressman has not heard of the balance of power among the three arms of our government. He was quoted as telling the Christian Coalition members:

"When the courts make unconstitutional decisions, we should not enforce them. Federal courts have no army or navy... The court can opine, decide, talk about, sing, whatever it wants to do. We're not saying they can't do that. At the end of the day, we're saying the court can't enforce its opinions."

Another congressman, Alabama Republican Robert Aderholdt, was quoted as advocating court stripping as a means to protect state-sponsored Ten Commandment displays, such as the one erected by former Alabama Supreme Court Chief Justice Roy Moore.

And then there was Sheila Cole, executive director of the Republican Study Committee, a group of ultra-conservative House members. She said federal judges who refuse to listen to Congress might well be impeached.

The courts, having the authority to enforce limitations on government power found in the Constitution and Bill of Rights, are our last and strongest bulwark against federal tyranny. The idea that Congress can strip the courts of their constitutional jurisdiction is absurd, but it looks like we're about to see the attempt.

The question is what happens when Congress passes such a law and the Supreme Court overturns it as unconstitutional? If the legislative activists bring us to that dangerous point, we'll have a full blown constitutional crisis to deal with.

 

[dmcowen674]

Originally posted by: cquark
Why do we never hear about the dangers of legislative activitism thwarting the intent of the Consitution?

Topic Title: The Dangers of Legislative Activism
Topic Summary: Are we headed for a Constitutional Crisis?

There is no "Constitution" anymore. Just the Radical Christian Right Wing Bush Regime/Republican Agenda

I don't get it, both the 50.9% that voted for this as well as the 49% that didn't should know this by now.

 

[sandorski]

It's sad when would-be Dictators get interfered with by a bunch who have no actual Power to defend themselves other than a peice of Paper. It seems that Internationalist Warmongering has finally come full-circle and now even Domestics are being subject to Gunboat Diplomacy. The prospect of a new Civil War seems to be more realistic with each passing day. The Rule of Law is what makes a Civilization, abandoning it is the end of Hard Work and Sacrifice of Generations of people.

 

[dmcowen674]

Originally posted by: sandorski
It's sad when would-be Dictators get interfered with by a bunch who have no actual Power to defend themselves other than a peice of Paper. It seems that Internationalist Warmongering has finally come full-circle and now even Domestics are being subject to Gunboat Diplomacy. The prospect of a new Civil War seems to be more realistic with each passing day. The Rule of Law is what makes a Civilization, abandoning it is the end of Hard Work and Sacrifice of Generations of people.

Interesting, just let me know when I should fire up the "Civil War" thread again.

The "Depression" thread is warming up again as the dollar and stock market go down down down.

 

[sandorski]

Originally posted by: dmcowen674

Originally posted by: sandorski
It's sad when would-be Dictators get interfered with by a bunch who have no actual Power to defend themselves other than a peice of Paper. It seems that Internationalist Warmongering has finally come full-circle and now even Domestics are being subject to Gunboat Diplomacy. The prospect of a new Civil War seems to be more realistic with each passing day. The Rule of Law is what makes a Civilization, abandoning it is the end of Hard Work and Sacrifice of Generations of people.

Interesting, just let me know when I should fire up the "Civil War" thread again.

The "Depression" thread is warming up again as the dollar and stock market go down down down.

😀

Well, that's just all my opinion so don't get ahead of yourself just yet. 😉

 

[BBond]

They only want to rule by judicial fiat when the jurist suits their narrow biased vision.

Scalia in shul: State must back religion

By URIEL HEILMAN

NEW YORK

US Supreme Court Justice Antonin Scalia used an appearance at an Orthodox synagogue in New York to assail the notion that the US government should maintain a neutral stance toward religion, saying it has always supported religion and the courts should not try to change that.

Speaking at a conference on religious freedom in America on Monday hosted by Manhattan's Congregation Shearith Israel, the oldest Jewish congregation in North America, Scalia said that the founding fathers never advocated the separation of church and state and that America has prospered because of its religiousness.

"There is something wrong with the principle of neutrality," said Scalia, considered among the court's staunchest conservatives. Neutrality as envisioned by the founding fathers, Scalia said, "is not neutrality between religiousness and nonreligiousness; it is between denominations of religion."

Scalia cited early examples of support of religion in the public sphere by George Washington, Thomas Jefferson, and Benjamin Franklin, the last of whom went so far as to argue at the Constitutional Convention in 1787 for the institution of daily prayers.

Today, Scalia noted, the government exempts houses of worship from real-estate tax, pays for chaplains in Congress, state legislatures, and the military, and sanctions the opening of every Supreme Court session with the cry, "God save the United States!"

"To say that the Constitution allows the court to sweep away that long-standing attitude toward religion seems to me just wrong," he said. "I do think we're forgetting our roots."

Scalia's speech, at a conference marking the 350th anniversary both of Jews in America and of Shearith Israel, elicited a standing ovation.

Scalia was nominated to the nine-member Supreme Court in 1986 by president Ronald Reagan to fill the seat vacated by William Rehnquist, who became the chief justice after Warren Berger retired. Now, with speculation that Rehnquist is on the verge of retirement after a recent diagnosis of thyroid cancer, Scalia may be the leading candidate to take his place.

It is widely believed that President George W. Bush will appoint a staunch conservative as chief justice if he gets the chance, and the only other Supreme Court justice considered sufficiently conservative is Clarence Thomas, appointed by president George H.W. Bush.

Originally from New York, Scalia wore a black skull cap as he addressed the congregation with his back to the ark.

"The founding fathers never used the phrase 'separation of church and state,'" he said, arguing that rigid separation of religion and state ? as in Europe, for example ? would be bad for America and bad for the Jews.

"Do you think it's going to make Jews safer? It didn't prove that way in Europe," he said.

"You will not hear the word 'God' cross the lips of a French premier or an Italian head of state," Scalia said. "But that has never been the American way."

Most establishment Jewish groups, however, are staunch supporters of church-state separation. Earlier this month, for example, the American Jewish Committee was part of a coalition that won a lawsuit to block a Florida program allowing state aid to go to parochial schools. In 2000, the Anti-Defamation League led several Jewish groups in criticizing vice presidential candidate Sen. Joseph Lieberman for talking too much about God on the campaign trail.

Scalia said expunging religion from public life would be bad for America, and that the courts, instead, should come around to most Americans' way of thinking and to the founding fathers' vision for the US. He noted that after a San Francisco court last year barred the recitation of the Pledge of Allegiance in public schools because it includes the phrase "under God," Congress voted nearly unanimously to condemn the decision and uphold use of the phrase.

"I suggest that our jurisprudence should comport with our actions," he said.

If America's approach toward religion does change, it should be through democratic process, not "judicial fiat." America believes in "a personal God who takes an interest in the affairs of man," Scalia said. Quoting a line from Psalms that says the faithful will surely prosper, he added, "I think it is no accident that America has prospered."

 

[Rainsford]

I think what a lot of you as missing is WHY these groups feel ok doing this. It's because they see their views as right, they think the majority of Americans agree with them, and they feel that gives them the right to absolute authority. In other words, laws and rules that stand in the way of these groups implementing their vision for America need to be ignored or sidestepped, from the Constitution on down. I don't think a lot of people understand this. It's not that these conservative groups want to work within the rules to change America to fit their vision, it's that they want to do whatever it takes to bring about their utopia, even if it requires destroying American democracy in the process.

What's funny is that these same people talk constantly about how this isn't a Democracy, it's a Republic. They are correct, of course, but they don't seem to realize that this makes their goals MORE anti-American, not less. In our government, the Constitution and our laws are greater than any idividual or group, no matter how large. The success of our government requires that no one is above the law. It doesn't matter if 99.99% of Americans want to sidestep the Constitution, they shouldn't be allowed to do it. Otherwise what's the point? We'll just have a system where any large group can attack any minority group they want with no consequences, which is not what our founding fathers probably had in mind.

Fortunitly I don't think they will get what they want, not unless people are actually willing to ignore what the courts say because "they have no Army or Navy". And I'm almost 100% positive that the day THAT happens, we're going to have some serious problems. And I'm not just talking about the non-conservatives either.

 

[CADsortaGUY]

Yes, ofcourse legislative activism can be detrimental. Just look at what some activism has turned into. I mean we won the war on poverty - no? We legislated a whole slew of things because people(activists) wanted to see something done and now we are all paying for it over and over again. SS is a great example of this.

However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring. The problem is that the courts seem to want to write law - a power the Constitution doesn't grant them and only grants to the Legislative branch. Ofcourse you also have that little issue about courts using the Constitution to rule on cases - but that doesn't seem to be as important as of late either. I mean what the world does and thinks is equally as important as the Constitution - right? :roll:

CsG

 

[Rainsford]

Originally posted by: CADsortaGUY
Yes, ofcourse legislative activism can be detrimental. Just look at what some activism has turned into. I mean we won the war on poverty - no? We legislated a whole slew of things because people(activists) wanted to see something done and now we are all paying for it over and over again. SS is a great example of this.

However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring. The problem is that the courts seem to want to write law - a power the Constitution doesn't grant them and only grants to the Legislative branch. Ofcourse you also have that little issue about courts using the Constitution to rule on cases - but that doesn't seem to be as important as of late either. I mean what the world does and thinks is equally as important as the Constitution - right? :roll:

CsG

I think the point is that legislative activism, in the scope of this thread, seems to mean marginalizing the courts. Whatever the reason, that doesn't seem like a good idea to me.

 

[CADsortaGUY]

Originally posted by: Rainsford

Originally posted by: CADsortaGUY
Yes, ofcourse legislative activism can be detrimental. Just look at what some activism has turned into. I mean we won the war on poverty - no? We legislated a whole slew of things because people(activists) wanted to see something done and now we are all paying for it over and over again. SS is a great example of this.

However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring. The problem is that the courts seem to want to write law - a power the Constitution doesn't grant them and only grants to the Legislative branch. Ofcourse you also have that little issue about courts using the Constitution to rule on cases - but that doesn't seem to be as important as of late either. I mean what the world does and thinks is equally as important as the Constitution - right? :roll:

CsG

I think the point is that legislative activism, in the scope of this thread, seems to mean marginalizing the courts. Whatever the reason, that doesn't seem like a good idea to me.

Sure, just like Judicial activism marginalizes the legislation process. The problem with this scenario is that the Legislative branch can and should act to stop it's powers from being co-opted. The Constitution lays out the guidelines for the limits of each branch. I haven't seen anything yet that suggests Congress has acted outside of it's powers regarding the Courts. Even impeaching Judges is well within their power.

I don't think this is going to turn into some big issue but it very well could if the courts don't stay within their bounds. The legislature MUST act if the courts overstep their bounds.

CsG

 

[Rainsford]

Originally posted by: CADsortaGUY

Originally posted by: Rainsford

Originally posted by: CADsortaGUY
Yes, ofcourse legislative activism can be detrimental. Just look at what some activism has turned into. I mean we won the war on poverty - no? We legislated a whole slew of things because people(activists) wanted to see something done and now we are all paying for it over and over again. SS is a great example of this.

However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring. The problem is that the courts seem to want to write law - a power the Constitution doesn't grant them and only grants to the Legislative branch. Ofcourse you also have that little issue about courts using the Constitution to rule on cases - but that doesn't seem to be as important as of late either. I mean what the world does and thinks is equally as important as the Constitution - right? :roll:

CsG

I think the point is that legislative activism, in the scope of this thread, seems to mean marginalizing the courts. Whatever the reason, that doesn't seem like a good idea to me.

Sure, just like Judicial activism marginalizes the legislation process. The problem with this scenario is that the Legislative branch can and should act to stop it's powers from being co-opted. The Constitution lays out the guidelines for the limits of each branch. I haven't seen anything yet that suggests Congress has acted outside of it's powers regarding the Courts. Even impeaching Judges is well within their power.

I don't think this is going to turn into some big issue but it very well could if the courts don't stay within their bounds. The legislature MUST act if the courts overstep their bounds.

CsG

Oh, I agree that I'm just as worried about Judicial overstepping as Legislative overstepping...except for the fact that the legislative (and executive, for that matter) branch is responsible to the people just as much as to the law, and people generally aren't too good at the law bit of our society. I'm less worried about an experienced judge overstepping his bounds than a senator or congressman or president doing it in order to court the neo-cons or the extremist liberals, neither of whom care as much about preserving the rule of law as they do about advancing their own agenda. I realize that judges do it too, but they don't have a base of voters they need to pander to.

Of course it is a problem on all sides, which is where the whole balance of powers comes from 😉 I'm just worried about people talking about getting around that because it doesn't fit into their particular vision for America.

 

[SuperTool]

The most backwards states in the union elected our current president to run this country.

 

[cquark]

Originally posted by: CADsortaGUY
However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring. The problem is that the courts seem to want to write law - a power the Constitution doesn't grant them and only grants to the Legislative branch. Ofcourse you also have that little issue about courts using the Constitution to rule on cases - but that doesn't seem to be as important as of late either.

CsG

I haven't seen any instances of the courts writing laws, though they do protect our rights by striking down unconstutional laws.

 

[cquark]

Originally posted by: CADsortaGUY

Originally posted by: Rainsford
I think the point is that legislative activism, in the scope of this thread, seems to mean marginalizing the courts. Whatever the reason, that doesn't seem like a good idea to me.

Sure, just like Judicial activism marginalizes the legislation process. The problem with this scenario is that the Legislative branch can and should act to stop it's powers from being co-opted. The Constitution lays out the guidelines for the limits of each branch. I haven't seen anything yet that suggests Congress has acted outside of it's powers regarding the Courts. Even impeaching Judges is well within their power.

Sure, the legislature can impeach judges, but if you would read the OP, you'd see bills proposed that would take away the courts power to decide the constitutionality of certain laws. That is outside of Congress's power and will provoke a constitutional crisis.

 

[imported_Aelius]

Lets not forget that the Jury holds the same power as the Executive both Federal and State, as well as Judicial branch when it comes to any law that is brought before them.

Jury Nullification is the only real power in the hands of citizens. It was designed specifically to counter tyranny at every other level of government.

It's a check mate. If a law is nullified by a jury it must be re-created from scratch. Not only that but everyone ever convicted of said law would be released.

 

[dmcowen674]

Originally posted by: SuperTool
The most backwards states in the union elected our current president to run this country.

:shocked: , What??? Where have you've been, you're not with the program yet, poor soul.

 

[daveshel]

Originally posted by: cquark

Originally posted by: CADsortaGUY
However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring. The problem is that the courts seem to want to write law - a power the Constitution doesn't grant them and only grants to the Legislative branch. Ofcourse you also have that little issue about courts using the Constitution to rule on cases - but that doesn't seem to be as important as of late either.

CsG

I haven't seen any instances of the courts writing laws, though they do protect our rights by striking down unconstutional laws.

Those who oppose the concept of judicial activism refer to changes in the law than came from the bench rather than from the legislature and site Roe v Wade and the affirmitave action cases, but overlook others, such as the Miranda warnings. Court-made law has been an important aspect of the system of checks and balances that has kept the relative power of the branches of the government roughly equal for most of our history. But there are those who now seek to tip the balance in favor of the administrative branch thanks to its ability to sell Bush as a moral man. Hello, theocracy.

 

[nageov3t]

don't get my wrong, I'm not constitutional scholar, but I've always thought that the founders intended for the constitution to be a living document, reflecting a constantly evolving civilization.

 

[Ldir]

Originally posted by: CADsortaGUY
However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring.

Hardly. Judges are much better watchdogs of the Constitution and America's best interests. Congress is corrupt. It panders to big money. It constantly passes harmful legislation in return for contributions. If judges did this, it would be called bribery. The judiciary is on our side. They understand responsibility. They are the grownups in government. Congress is spoiled children.

 

[Jhhnn]

Just so we all know what you're talking about, CsG, perhaps you'd clarify this remark-

"However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring."

What are the "dangers" of Judicial Activism? What examples would you provide? When has it acted against the rights of Citizens?

What advantage is there to having Frist, DeLay, and Bush both write the Law and interpret the Constitution?

 

[43st]

Originally posted by: Ldir

Originally posted by: CADsortaGUY
However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring.

Hardly. Judges are much better watchdogs of the Constitution and America's best interests. Congress is corrupt. It panders to big money. It constantly passes harmful legislation in return for contributions. If judges did this, it would be called bribery. The judiciary is on our side. They understand responsibility. They are the grownups in government. Congress is spoiled children.

I agree. The current GOP themed "Activist Judges" campaign seems like an attempt to corrupt yet another branch of government with partisan BS.

Regardless of the name the intent is to control every aspect of government in a one party system. GOP'ers love it, but so did the Nazi's.

 

[Hayabusa Rider]

Originally posted by: CADsortaGUY

Originally posted by: Rainsford

Originally posted by: CADsortaGUY
Yes, ofcourse legislative activism can be detrimental. Just look at what some activism has turned into. I mean we won the war on poverty - no? We legislated a whole slew of things because people(activists) wanted to see something done and now we are all paying for it over and over again. SS is a great example of this.

However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring. The problem is that the courts seem to want to write law - a power the Constitution doesn't grant them and only grants to the Legislative branch. Ofcourse you also have that little issue about courts using the Constitution to rule on cases - but that doesn't seem to be as important as of late either. I mean what the world does and thinks is equally as important as the Constitution - right? :roll:

CsG

I think the point is that legislative activism, in the scope of this thread, seems to mean marginalizing the courts. Whatever the reason, that doesn't seem like a good idea to me.

Sure, just like Judicial activism marginalizes the legislation process. The problem with this scenario is that the Legislative branch can and should act to stop it's powers from being co-opted. The Constitution lays out the guidelines for the limits of each branch. I haven't seen anything yet that suggests Congress has acted outside of it's powers regarding the Courts. Even impeaching Judges is well within their power.

I don't think this is going to turn into some big issue but it very well could if the courts don't stay within their bounds. The legislature MUST act if the courts overstep their bounds.

CsG

I am not sure how I feel about this. People don't sit in the back of busses because of judicial activism, but then again the courts have IMO gone too far in some things. The problem is that my sensibilities enter the picture and what I want isn't always what is "right" or so I have to assume, being an imperfect being.

Now the real concern is what if Congress decides to put riders prohibiting judicial review. What if some of these are questioned on Constitutional grounds? Now what? People have no way to address specific issues. Saying the ballot box is the place to voice opposition is NOT what the Framers would approve of, otherwise why have judicial review of law in the first place?

So, Congress passes a law that is in effect illegal (by the Constitution) and prevents it from being overturned? Is that what people really want? Who intercedes when the courts and the legislature are locked in a deathmatch?

 

[CADsortaGUY]

Originally posted by: WinstonSmith

Originally posted by: CADsortaGUY

Originally posted by: Rainsford

Originally posted by: CADsortaGUY
Yes, ofcourse legislative activism can be detrimental. Just look at what some activism has turned into. I mean we won the war on poverty - no? We legislated a whole slew of things because people(activists) wanted to see something done and now we are all paying for it over and over again. SS is a great example of this.

However bad the "ills" of legislative activism are - they don't even come close to the dangers that Judicial activism bring. The problem is that the courts seem to want to write law - a power the Constitution doesn't grant them and only grants to the Legislative branch. Ofcourse you also have that little issue about courts using the Constitution to rule on cases - but that doesn't seem to be as important as of late either. I mean what the world does and thinks is equally as important as the Constitution - right? :roll:

CsG

I think the point is that legislative activism, in the scope of this thread, seems to mean marginalizing the courts. Whatever the reason, that doesn't seem like a good idea to me.

Sure, just like Judicial activism marginalizes the legislation process. The problem with this scenario is that the Legislative branch can and should act to stop it's powers from being co-opted. The Constitution lays out the guidelines for the limits of each branch. I haven't seen anything yet that suggests Congress has acted outside of it's powers regarding the Courts. Even impeaching Judges is well within their power.

I don't think this is going to turn into some big issue but it very well could if the courts don't stay within their bounds. The legislature MUST act if the courts overstep their bounds.

CsG

I am not sure how I feel about this. People don't sit in the back of busses because of judicial activism, but then again the courts have IMO gone too far in some things. The problem is that my sensibilities enter the picture and what I want isn't always what is "right" or so I have to assume, being an imperfect being.

Now the real concern is what if Congress decides to put riders prohibiting judicial review. What if some of these are questioned on Constitutional grounds? Now what? People have no way to address specific issues. Saying the ballot box is the place to voice opposition is NOT what the Framers would approve of, otherwise why have judicial review of law in the first place?

So, Congress passes a law that is in effect illegal (by the Constitution) and prevents it from being overturned? Is that what people really want? Who intercedes when the courts and the legislature are locked in a deathmatch?

Sure, I've already said there can be problems but as you hinted -we already do have problems within our court system. The problem is that people think something is suddenly legitemized/endorsed if a law prohibiting it is overturned. That is not the case, and a law may be rewritten effectively doing the same thing but doesn't trip over the Constitutional line. However in a situation like Mass where the courts basically tell the legislature they must pass a law - that is crossing the line. The courts have no say in what laws are passed - they only have the power to review them on Constitutional grounds. Now as to the other issues regarding this - the USSC should and is forced by the Constitution to use it as a basis for their decisions. When the USSC starts looking to what other countries are doing or what is happening there - that sets a bad precidence for the future. The USSC should stick to using the Constitution because that's their guide.

*****

Ldir, my naive little friend - the Courts aren't put there to deal with "America's best interests" - they are there to uphold the law and Constitution. The "best interests" starts and ends with the Constitution as far as the courts go.

 

[cquark]

Originally posted by: CADsortaGUY
However in a situation like Mass where the courts basically tell the legislature they must pass a law - that is crossing the line.

But that's not what happened.

The MA senate asked the MA SC about the constitutionality of Senate Bill No 2175, which would ban same sex marriages, and the MA SC issued an opinion stating that the bill was likely unconstitutional and explained why it was so in detail.

 

[CADsortaGUY]

Originally posted by: cquark

Originally posted by: CADsortaGUY
However in a situation like Mass where the courts basically tell the legislature they must pass a law - that is crossing the line.

But that's not what happened.

The MA senate asked the MA SC about the constitutionality of Senate Bill No 2175, which would ban same sex marriages, and the MA SC issued an opinion stating that the bill was likely unconstitutional and explained why it was so in detail.

Wrong. The Mass Sup Court told the Mass Legislature it had 180 days to rewrite marriage law. That is not within their power - nor should it ever be.

CsG