elfs | Newsies...

Hey,

technoshaman, check out The Language Police, a new book about how school textbooks are authorized and written in the United States. Various textbook approval committees have banned stereotypes such as "whites living in affluent neighborhoods," or "boys expressing anger"; others have forbidden "snowman" and "forefather" on the grounds that they're sexist. One parent successfully got her daughter's grade overturned on the grounds that, since she lived in Chicago, she was unfairly disadvantaged by a writing assignment that asked her to imagine life on the ocean.

Ugh. Someone tell me that multiculturalism deserves a snowflakes's lifespan in a cyclotron after they read this.

Bwahahaha. Al Qaeda tells the boys back home, "Yeah, we caused the U.S. blackout. Don't pay attention to the news from the U.S. There was looting in the streets. New York now looks like Bagdhad."

The Baptist Press is reporting that Alan Keyes has spoken in defense of Roy Moore's Ten Commandments Monument, claiming that the First Amendment clause, as it is written, applies only to the Federal Government and not the states, and that states are free to implement whatever religious oaths and tests that they deem acceptable, to authorize state churches, and to make religious statements.

Someone remind Keyes of the following very important words:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

A Norwegian man who discovered his friends were throwing him a surprise party decided to turn the tables and surprise them by lighting off his shotgun into the air. But he tripped and shot six of his friends instead. A likely excuse.

The Lord works in mysterious ways. At least, that's what's being said about the death of Hitoshi Nikaidoh, who was decaptitated in a freak elevator accident at St. Joseph Hospital in Texas just days before he was due to be sent to Africa as part of a Christian Mission.

Current Mood: mixed
Current Music: Kryptonic, Death Star

Flat | Top-Level Comments Only

From: (Anonymous)

As much as I wish it did, the separation clause does not explicitly grant any right to religious freedom per se, it simply restricts the federal legislature. As such, I have difficulty seeing what "trickles down" due to the fourteenth amendment.

I can't argue with the fact that case law is in your favor (and on a personal level, I am very glad it is). But Keyes' statement was about the first amendment as originally written, and that's what I was agreeing with.

Jeremy

From:

damiana-swan.livejournal.com

I may be completely misremembering here, but isn't the hierarchy that any rights/responsibilities not specifically reserved for the federal government devolve to state or local governments, and anything not reserved for the state or local governments automatically devolve to the individual?

And don't most (if not all) state constitutions include a clause specifying separation of church and state?

And, isn't Moore a federal judge anyway, and isn't the monument at the federal courthouse?

From: (Anonymous)

I may be completely misremembering here, but isn't the hierarchy that any rights/responsibilities not specifically reserved for the federal government devolve to state or local governments, and anything not reserved for the state or local governments automatically devolve to the individual?

Sounds good to me.

And don't most (if not all) state constitutions include a clause specifying separation of church and state?

Yep, and I agree the monument is in violation of the Alabama constitution; that's why I think it should be removed. Or I should say, that's the legal reason it should be removed.

And, isn't Moore a federal judge anyway, and isn't the monument at the federal courthouse?

No, he's the state chief justice, and it's a state courthouse.

Jeremy

From:

wendor.livejournal.com

It would be a matter of debate whether or not the display is even a violation of the State Constitution in Alabama.

The clause in question would be: "SECTION 3
Religious freedom.
That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles."

The only portion that could apply in this case would be "...that no preference shall be given by law to any religious sect, society, denomination, or mode of worship..."

The question would be whether the display is preference given by law...especially since Moore has said that he is open to displays by any other religious group who asks.

From: (Anonymous)

Nah, it's also the part about taxes being used to maintain a minister or ministry. When Moore is using the resources of his office to promote the Judeo-Christian religion, that's exactly what's going on.

Jeremy

From:

wendor.livejournal.com

Ok, I'll buy that angle.

So that makes sufficient grounds to act on the matter locally in Alabama.

The Federal Courts still have no jurisdiction.

From:

wendor.livejournal.com

Moore is the Chief Justice of the Alabama Supreme Court and the monument is at the Alabama State Judicial Building.

The order to remove it was a Federal Court order issued by District Judge Myron Thompson. The order was upheld by the 11th U.S. Circuit Court of Appeals on the grounds that "the Ten Commandments display is a blatant violation of the First Amendment principle of church-state separation"

Note that it is not a violation of the First Amendment itself.....so apparently the court is ruling that it doesn't violate the law.....it violates the "principle" that they feel is behind the law.

Since the First Amendment says nothing about what State government officials can do....the display is not a violation of the First Amendment. As Elf pointed out, the Fourteenth Amendment covers State governments....but no one has explained yet how the display abridges the privileges or immunities of citizens of the United States in any way whatsoever.

It's a really scary situation when the Federal government threatens to fine or jail the Chief Justice of a State Supreme Court....but can't show any actual law being broken.

I wonder if those who support the removal of the monument by force would feel the same if the Federal Government arrested them....not for breaking the law, but for violating a "principle" not actually spelled out in law.

From:

elfs.livejournal.com

Hmm... quote-mining is something creationists are usually guilty of. The ruling specifically states, "Prominent displays of the Ten Commandments on government grounds have been held to violate the Establishment Clause." (9th Circuit ruling, page 43, citing cases upheld by the Sixth and Seventh Circuits, all of which have been refused further hearings by the Supreme Court).

It's not just the principle of the thing. When Moore says that the Ten Commandments "aren't religion, they're just about God" and so aren't violating the First Amendment or the Alabama Constitution, he's clearly weaseling in the worst way.

Read it yourself. It's a PDF. (http://www.ca11.uscourts.gov/ops/200216708.pdf)

From:

wendor.livejournal.com

"Prominent displays of the Ten Commandments on government grounds have been held to violate the Establishment Clause."

Well, let's see....the clause states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Since that clause specifies "Congress" it does not apply to Moore at all unless they are extending it to include "principles" beyond the written law.

Now the Court claims that the Due Process clause of the Fourteenth Amendment means that the First Amendment restrictions apply directly to the State as well (section II of the ruling)....a preposterous claim completely contradicted by the actual text of the Fourteenth Amendment. Even if this were granted the text of the First Amendment spells out what the restrictions are and the display violates neither of them.

So while these displays have been "held" to violate the Establishment Clause...the fact is THEY DO NOT. (read them)

The Court bases it's decision not on the law, but on an "interpretation" beyond the law (section V of the ruling). They openly admit that the Constitution has NO prohibition applicable to this case....but claim that it is prohibited by the Supreme Court's "understanding of its general meaning"

Since the Court is upholding an action being made illegal, not by passage of law by elected representatives of the people, but merely by declaration of opinion by at least 5 of 9 people (note that there is no legal challenge allowed to that opinion, nor any recourse against those who issue it)....we may as well kiss the Constitution goodbye.

We have now allowed 5 people to add content to, or remove content from the Constitution at will, to make any action they disapprove of illegal without the consent of the governed and without course of appeal. As I said before, I can't wait to see the look on people's faces when the same kind of "opinion" is used to their detriment instead. (The Supreme Court could issue an opinion tomorrow that having blond hair, being gay, or having children out of wedlock is a violation of the Constitution as they understand it....and there would be no legal recourse whatsoever....and it would be just as "legal" as this ruling)

Sorry, but I'd prefer to keep the Constitution as the law of the land rather then replacing it with "the unchallengeable whims and opinions" of a few people.

From: (Anonymous)

Just to play devil's advocate, keep in mind that it is the Constitution itself that gives the Supreme Court the final word on what it means. Rejecting their rulings requires you to ignore parts of the Constitution, the exact same thing you accuse them of doing. Like it or not, stare decisis is the way things work in this country.

Jeremy

From:

wendor.livejournal.com

That's why I'm in favor of an Amendment to correct this gap in the checks and balances system.

There needs to be some counter to the absolute authority of the Supreme Court.

The current situation is way too similar to most religions.....we have this book, and it has the rules in it....but you don't get to use the book or its rules....you have to live by what WE say the rules say (no matter how obviously we contradict what's written)...and oh yeah, you have no alternative but to accept our interpretation.

From:

lisakit.livejournal.com

As a paralegal I cannot give legal advice, consult a lawyer. (besides, I'm still a student)

stare decisis: To stand by that which was decided. Rule by which common law courts "are slow to interfere with principles announced in the former decisions and often uphold them even though they would decide otherwise were the question a new one." 156 P.2d 340, 345. "Although [stare decisis] is not inviolable, our judicial system demands that it be overturned only on a showing of good cause. Where such a good cause is not shown, it will not be repudiated." 298 U.S. 38, 94. See precedent.
- Barron's Law Dictionary, p.483-484

Precedent: A previously decided case which is recognized as authority for the disposition of future cases. A precedent may involve a novel question of common law or it may involve an interpretation of a statute.
- Barron's Law Dictionary, p.382

Yes, this *is* the way our legal system operates. This is why lawyers must be very good at finding cases similar to the one they are working on. Precedent creates law, and no court can go against precedent without a showing of good cause. This is to keep an individual judge from abusing his/her authority.

You are correct that creating new statutory law (whether at the local, state or federal level) is a good way to quickly change the law. However, if a statute is grossly contradictory to existing precedent it could get removed when contested. It's a very complex system, but the more I learn about it the more I see just how well it really does work.

From:

wendor.livejournal.com

Yes, this system works well when the statute is grossly contradictory to existing precedent.

But what about the situation in question.....when the ruling (precedent) is grossly contradictory to the statute?

What do we do when the court's "interpretation of a statute" strays from the actual text of the statute into the realm of extending the existing statute beyond it's original scope and thus creating new law out of whole cloth? The obvious answer is to appeal that ruling.....an answer that works fine as long as the impropriety takes place at a level lower than the US Supreme Court. If the Justices of the US Supreme Court are corrupted by their own absolute power there is no legal recourse.

From:

lisakit.livejournal.com

What do we do when the court's "interpretation of a statute" strays from the actual text of the statute into the realm of extending the existing statute beyond it's original scope and thus creating new law out of whole cloth?

Well, when a statute is quite vague there are two options:
1) repeal the statute
2) create or revise case law to define it.
Again though this is up to the court in question and gets back to your dilemma of how do you change the highest courts decision. You don't. You wait until we get new SC Justices on the bench or until public policy has changed such that the current justices are making different types of decisions, and bring the matter up in the next similar case.

It's not perfect, but I don't know how to fix it either. I certainly prefer our system to ones like that of France where the courts have no leeway at all if there is no statute to cover the question. In those instances a wronged party cannot achieve justice because, as they operate, if there is no statute governing the situation there is no wrong done.

From:

wendor.livejournal.com

And again we're back to the problem of allowing the same people to decide if the statute is vague enough to rquire interpretation that benefit from interpreting it.

From:

lisakit.livejournal.com

Um, that's what I just said.

And again for solutions:
1) Move for impeachment (for SC Justices the SC does not try the case, Congress does - no I don't know the process well enough to describe it);
2) Create a bill to limit the terms of SC Justices;
3) Wait for a vacancy on the bench and fill it with someone who better reflects the wishes of the people.

From:

wendor.livejournal.com

Unfortunately the problems with those 3 are:

1. Basically impossible to impeach SC Justices without proof of an indictable criminal act.

2. Constitution specifies term for Federal judiciary....so changing it would require an Amendment.

3. Live with the damage for 20-30 years.

From:

elfs.livejournal.com

Y'know, there is a check. It's called time, and the passage thereof. All your proposal will do is add more to the book and its interpretation. If the Supremes do things that we don't like, they can be impeached, each and every one of them, and the final decision of the legislature cannot be overturned.

And then the Congress and the President can get together and put in a new collection of autocrats to their liking.

From:

wendor.livejournal.com

Justices of the Supreme Court can't be impeached for doing things that we don't like.....by "law" (based on the opinions of those very same people) impeachment requires more than just a ruling in a contested case. (such as an indictable criminal act)

The judiciary cannot overturn an impeachment decision (Nixon v. Unites States 1993)...but they have indeed managed to cover themselves on the front end.