Long Article

[Aileron]

This is a long article, but a good read if you have the time. I also read the book at the end, which is a good read too.

 

 

[FMBI]

Judges suck. However, they're a lot less threatening than a religion+financial elite backed presidency, both because of their limited impact and their limited ambition. Besides, judges have recently been going right-wing on all the major decisions - death penalty, gun control, etc. What's the big deal?

[Aileron]

I'd like to challenge that claim. Could you name an instance where the religious elite has threatened democracy? (Not counting Islamic terrorism.)

 

My opinion is that our country is being converted into a legal oligarchy, where no one else is allowed to make a real decision without appeasing some policy written by lawyers and insurance companies. The reason religious figures are coming under fire is because they are actually resisting the rulings of the lawyers and the insurance people.

 

A good example is divorce. Lawyers like divorce because divorce makes lawyers money. The religious say divorce is wrong. This belief offends lawyers because it threatens their profits. It is lawyers who are on the offensive on that front, because it used to be wrong to get a divorce, but now it is commonplace.

[FMBI]

The religious elite have lots of anti-democratic ideas. However, to ensure fair play, I will avoid the extreme religious reconstructionist views, and try to stick to the more mainstream ones.

 

- The idea that we "need to take this country back for God" (most notable in Patrick Henry College, but very popular in most Baptist churches I've been to), regardless of actual history (the theocracy-oriented colonies failed, the Founding Fathers were primarily deists / agnostics, etc).

 

- The often-absolute alliance with the Republican party - no, I'm not against this because I'm a liberal, I'm against it because it concentrates too much power in too few hands. I'd be just as upset if there were an always-Democratic faction with as much electoral power as the evangelicals - handing one third of the electorate to a party, regardless of virtue, is extremely dangerous.

 

- The move from healthy skepticism of Islam to a belief in total dissolution of the UN, shutting down trade with those nations, etc - it might sound good ("It will MAKE them cooperate!"), but it actually does severe and lasting damage to any democratic movements those countries might develop. *COUGH* Iran *COUGH*

 

- The move to declare contraception as "abortion" - this is undemocratic, because it could (note that I'm no friend of feminists) set women's rights back several decades. Saying we should delink respect and sexuality is all well and good, but it's a lot easier to say that when you aren't the one that gets pregnant in teenage sex.

 

- The religious right's initial emergence was actually based on an attempt to re-allow segregation in BJU, though the abortion issue nicely smokescreened this. Jesse Helms might have died, but there are quite a few people out there (especially in the easily roused Baptist-oriented south) who would like to see Jim Crow brought out of the grave.

 

 

The belief that the US is turning into a "legal oligarchy" has been floating around for quite a while, mostly based on the observation that, as you mention, you have a hard time even breathing anymore without a lawyer's permission. However, on closer inspection, the Judicial branch isn't so threatening by itself. The top Judiciary has been Executive-dominated since FDR, with every president packing the Supreme Court, getting legal aides to rewrite the law, and appointing "everyday" judges to see that everything goes their way.

 

If you take the Executive out of the picture, yes, you still have an extremely inconvenient, greedy, m!@#$%^&* of lawyers ("feeding off of society" as a friend of mine fondly refers to them), but their short-term focus and desire for money actually short-circuits their ambition in virtually all cases. So you might have companies that pay out $5 million to an obese woman who ate at McDonald's, but you won't have significant, life-changing suits that make you want to kill yourself.

 

Low-level judges are also largely irrelevant, because while they might do a bit of grandstanding (as in old Roy "Tenner" Moore's case), any huge decisions they make are going to get referred to the higher levels, and those higher levels are, again, stacked by the Executive. It doesn't make a difference if a crazy judge out in Wyoming throws the Cons!@#$%^&*ution out the window, unless there's someone bigger to back him up.

 

 

So.. actually, that just makes the presidency look even more threatening.

[PaRa$iTe]

I'd like to challenge that claim. Could you name an instance where the religious elite has threatened democracy? (Not counting Islamic terrorism.)

Let's see.. the Medieval? ;P

 

A good example is divorce. Lawyers like divorce because divorce makes lawyers money. The religious say divorce is wrong. This belief offends lawyers because it threatens their profits. It is lawyers who are on the offensive on that front, because it used to be wrong to get a divorce, but now it is commonplace.

I really doubt divorce was legalized because lawyers wanted more profits. If it happened for another reason, then it is the religious who're "on the offensive", since they're trying to change the current system for one with less human rights. If they wanted to re-establish slavery, would lawyers who oppose them be on the offensive? I mean, slavery used to be commonplace, and I'm sure that black people with lots of money who employ lawyers pay off much more than slaves you're allowed to shoot if they get annoying.

 

Divorce exists because marriages, when they go wrong, else can ruin people's lives, the lifes of their children, and the aforementioned children's families and kids too when the traumas kick in.

Edited August 1, 2008 by PaRa$iTe

[NBVegita]

Para, I would say that divorce has just as severe of an effect as parents staying together. (with obvious exceptions, if you have a civil divorce vs parents who always argue but stay together)

 

Finland can you link to the contraceptives please?

 

And for the "The often-absolute alliance with the Republican party" It's hard to say that being there are (by sheer volume) more democratic Christians than Republican christians. Technically shouldn't there be more republican christians then? If the evan's are in the republicans pockets, why do the dems fight so hard to court them?

[»Ducky]

Divorce exists because people want the choice to be able to leave a relationship with legal and emotional impunity.

 

This doesn't mean that it's legal because lawyers want to make more money. It's legal because there are more people supporting it than there aren't.

 

It's the same reasoning behind why clowns can still own guns and why in some states, shooting two people after telling someone you're going to do it isn't blatant murder

Edited August 1, 2008 by Ducky

[FMBI]

Contraceptive link

 

I'll modify the "often absolute" statement a bit here. Yes, there may be more Christians in the Democratic party than there are in the Republican party, but the core, bible-thumping, church-every-Sunday crowd* almost invariably goes Republican. I honestly don't know why Democrats try to pick up the Evangelicals, because it never has a significant effect, unless outside cir!@#$%^&*stances are so god-awful* that they would have voted against the Republican anyway. Meaning, this year, some Evans might desert - but if things go back to normal, they'll still make up a massive part of the Republican voting bloc. I don't know about you, but I'd rather see the boiler repaired before it explodes, to use an absurd metaphor.

 

 

 

*Note that I'm not trying to insult anyone here, just making my point.

[NBVegita]

Agreed above.

 

Also that is one wacky leaked non-proposal. I don't think it'll ever make it to a formal proposal.

 

There are maybe a 100 people in the world that would support it.

 

Gotta love extremists.

[PaRa$iTe]

Para, I would say that divorce has just as severe of an effect as parents staying together. (with obvious exceptions, if you have a civil divorce vs parents who always argue but stay together)

Maybe for the children, but not so often for the people who're married, and who ultimately are the ones to decide whether they want a divorce or not. Not all couples have children, too. And if the situation is so bad that the divorce doesn't work properly (that is, people accusing each other of random stuff, sue each other, etc) then staying together would probably not be a plausible option.

[Aileron]

Sorry, its been a while.

 

Parasite, Medieval times don't count as a 'threat towards democracy' because democracy didn't exist at the time and couldn't be threatened. Yes, under monarchy a lot of crazy things happened...on both sides, but because people have an agenda people never mention that the nuts on the secular side were a lot worse than the religious ones at that age in history.

 

Divorce was first legalized by King Henry VIII. The decision had nothing to do with democracy and actually solidified Henry VIII's power as the first leader of both Church and State in England since the time of the pagans. I'm not going to defend the imaginary movement you dreamed up of a religious movement to make divorce illegal. It doesn't exist, and I'm not going to start an argument in your imaginary universe. The real religious movement is that couples should try to avoid divorce on their own, hopefully getting the divorce rate below 50%. Its a cultural movement, not a legal one.

 

 

 

 

Finland, you cite a large number of political opinions which though you me not agree with them, do not cons!@#$%^&*ute a threat towards democracy itself. For instance, 'taking the nation back for God' means to convince people to be more open about religion in public. Clearly we can't create a monarchy with God in charge at the moment; He's incommunicado. The closest thing to rule of God we can get on Earth is democracy, since everyone in God's heirs. What 'taking the nation back for God' functions as is a standard political campaign to persuade people to vote a certain way, not a campaign to disenfranchise people of their power. Such movements are within the bounds of democracy.

 

I'd also like to challenge the claim that the founding fathers were agnostic. Thomas Jefferson included a mention of God in the second sentence of the Declaration of Independence. The inspiration for much of his work was the concept of 'Natural Law' developed by Thomas Aquinas, who was a career theologian and is a Saint in the Catholic Church. They were a lot more religious than the modern definition of 'agnostic' to be sure. They generally were the type of people to go to church every Sunday.

 

Labor Unions have as much an iron-clad alliance with the Democratic party as evangelicals do.

 

I never once heard mention of international politics in Church, except international charity. The Pope has criticized Islam for being too radical, but that criticism is actually promoting democracy because it stands to advance free speech.

 

I'll admit that racists don't like to admit they are racist, and the first thing they do is try to pretend to be religious. Its a lie when they do. Jesus did ask for water from the Samaritan woman at the well, so a religious person would understand that and not be racist.

[Hoch]

The article is an interesting insofar as the author launches

an all out attack on the judiciary. As an English jurist it pre-

sents an interesting situation because in our cons!@#$%^&*utional

monarchy Parliament is sovereign, absolutely. This simply

means that no other body can overrule Parliament. Even

a decision given by the European Courts do not have to be

followed, though of course Parliament normally does.

 

The situation in the US is, of course, slightly different. Early

on in the courts history the principle of judicial review evolved.

Some have argued that the the Supreme Court's ability to

strike down legislation is a legal fiction. Whilst this is an inter-

esting philosophical debate it is rather moot considering that

now it is a cons!@#$%^&*utional convention.

 

As near as I see it, the underlining issue is the extent to which

the judiciary exercises its power of review. I have identified

two broad questions:

 

1. In trying to address issues in practical law how should we

approach a persistent and very difficult question when judges

take a view what the law is (interpretation) and disagree with

Parliament and Government, what should their powers be?

 

2. How much should judges be en!@#$%^&*led to shape our law as op-

posed to those who we think also have a right to shape it, i.e.

the Government and Parliament.

 

A third question arises in the context of terrorism laws as to

whether the interpretation of legislation by judges should sim-

ply be one whereby they exercise a minimum of discretion

however objectionable that legislation may be in the eyes of

the claimant/pe!@#$%^&*ioner, simply because the people have spo-

ken.

 

In the case under discussion there is clear legislation pur-

porting to remove federal courts of jurisdiction over habeas

pe!@#$%^&*ions. In rejecting the Court's decision the author maintains

the Court created a new writ. This is of course an interesting

point to make, but it is one based on politics and not the law.

 

In its judgment the Court did not create a new writ. Rather,

the Court sought to clarify the position with respect to the

writ of habeas corpus and foreign nationals. As evidenced

from the cases sighted the law hitherto suggested that the

writ was not applicable. However, the instant case rested on

a separate set of facts. Consequently the previous decisions

of the court must be distinguished but not followed. For this

reason the author overreaches himself by noting that 'there

was no writ of habeas corpus outside sovereign American

territory'.

 

The author goes on to suggest that if the appellants have the

right of due process, as found in the Fifth Amendment, that

this might somehow import the evocation of 'Miranda' rights.

There was also discussion about US troops becoming investi-

gators.

 

The second point is easier to dismiss because this was beyond

what the Court was considering. The difficulty with the first line

of discussion is that it presumes far too much. Whilst there is

little doubt that future similar cases will be built on this judgment

it may well be that this case is confined to these particular set

of facts. Moreover, the narrower issue that this case resolved

may not necessarily be exported to broader issues of cons!@#$%^&*u-

tional concern.

 

As a jurist, I found myself unable to agree with the conclusions

of the author. As a political scientist there is much that can be

used to further propagate the belief that unelected officials are

in control. Yet, no matter what level or angle I viewed it from I

could not ignore that at the most fundamental level an accused

has the right to know why he is being held.

 

These are indeed unusual times, but the progression of domestic

and international law firmly cements the right of habeas corpus.

Indeed, there can be no derogation as the Detainee Treatment Act

set out to do. On this point, I do agree with the author that it is for

Congress to set-out legislation to resolve the uncertainty. But it

must do so within the existing cons!@#$%^&*utional framework.

 

-Hoch

 

A propos, divorce was legalised long before Henry VIII. Examples

range from Judaic law to Roman law. Even the Greeks allowed it.

[PaRa$iTe]

Divorce was first legalized by King Henry VIII. The decision had nothing to do with democracy and actually solidified Henry VIII's power as the first leader of both Church and State in England since the time of the pagans.

Incorrect. Divorce was first legalized in England by King Henry VIII. Many Protestant movements allowed divorce prior to this.

 

Also, the situation in Switzerland was fairly interesting. I believe there was SOME democracy in its cantons in the Middle Ages; however, during the Reformation the Church took more control over things, particularly during the Counter-Reformation. This is understandable, since a war would be fought, but nevertheless.

[Aileron]

Good point on divorce, but I used the source for American law.

 

 

Well, I think for starters, the Judiciary shouldn't be allowed to stay in term for life. Our current system is such that once a President appoints a Supreme Court Justice, that person is untouchable from then on. They could get as crazy as they want and there would be no mechanism to remove them from office.

 

When the Cons!@#$%^&*ution was written, the concept of someone living to 70 was unfathomable. While technically the term was life, the life expectancy made that period of time short, so judges would be cycled on a regular basis. Now, we can have judges who stick around for 20-30 years and are accountable to no one.

 

My humble proposal is that the Cons!@#$%^&*ution should be changed so that they get 10 year terms, after which time they may be re-appointed by the President. As for Cons!@#$%^&*utional overrides of legislation, the current system works. Congress can overrule the Supreme Court by 2/3rds majority. The problem, as I said, is that the Court Justices are accountable to no one.

 

 

He was correct in that Habeas Corpus was never granted to internationals before this writ. All previous cases were rights granted by treaty with a power which in turn would grant similar rights to our citizens. It is an act of diplomacy, not law.

 

What the writ essentially states is that the Cons!@#$%^&*ution applies to persons who are not citizens of it, have no allegiance to it, and have done nothing to support it.

 

Miranda rights follow from the Fifth Amendment handily. If somebody has Fifth Amendment rights, they have Miranda rights (that is the right to know about their Fifth Amendment rights).

 

 

 

 

 

Suppose this writ came out in WWII. Then Nazi and Japanese soldiers would have rights under the Cons!@#$%^&*ution. Every enemy soldier captured would require an attorney, a trial to prove they were an enemy soldier, and the right to be released if that trial found them innocent. They would need a jury of their peers for each trial, which would be twelve persons with citizenship of a hostile country, and we would hope those twelve persons would put facts above politics. All this comes from due process.

 

To help the trial, soldiers would need to gather evidence in the field for each enemy prisoner. They would need to collect every enemy weapon while wearing gloves, so that fingerprints could be matched to the enemy soldiers, as well as eye-witness accounts clearly identifying which enemy soldier was shooting at which friendly soldiers. They would have to stop and give each one the Miranda speech, in German, Italian, or Japanese. They would also have to do this in the middle of a battle while they were being shot at. All this would be required to prove them guilty by a due process trial.

 

Furthermore, the enemy would have search and seizure rights, so after our code-breakers broke the enemy communications code, our intelligence services would need a warrant from a judge to monitor German transmissions. If soldier came upon an enemy headquarters, were enemy intelligence officers are burning vital do!@#$%^&*ents before their approach, they'd have to stop and wait for a judge to grant a warrant to search the enemy headquarters. Furthermore, German and Japanese citizens could travel in an out of the US without being singled out as possible spies. This comes from Search and Seizure rights.

 

That's just the basic start of things. We haven't even started to interpret additional rights out of the Cons!@#$%^&*ution. Point being, its ridiculous.