[Psudo]

Marcus_Ozius wrote:

the increase in litigation is the breakdown of societal pressures. In the old days, peer pressure, the need to conform, social expectation, and a general sense of mores and tradition kept people in line. Well, we got rid of those, and low and behold people started getting crazy. Well, we'll bring in lawyers to fix the problem!

Spot-on!

xerxes wrote:

The logic is that the amendment says that everyone in the US should be given equal protection under the law and that Prop 8, through the banning os SSM, created a class of people who aren't being treated equally under the law.

This is also the same rationale as to why "civil unions" and "domestic partnerships" (in lieu of marriage) don't fly; because they create a seperate, inferior class of people.

Technically, homosexual people aren't being treated differently under the law; their relationships are. Any given single individual is free to marry in exactly the same range of ways, but it's the limitations to that range the oppose homosexuality in practice.

[Kjorteo]

Few things irritate me these days quite like the whole "activist judges" rant. Our founding fathers (you know, the ones the far right like so much and whose corpses the right claims judges are violating with their evil activist ways?) made them one of the three branches of the Government and specifically tasked them with those checks and balances they get to apply to the other two. Of course they throw out laws when they think they're unconstitutional; that's their job.

And this whole narrative we see these days where a "bad" judge is one whose personal agenda guides them to interpret what laws mean and a "good" judge is one who robotically reads a strict and literal interpretation of the Constitution and nothing more... no. First off, there is nothing in the Constitution to strictly and literally interpret. It's a very spirit-of-the-law document whose actual wording would be almost completely meaningless if a modern-day court were to attempt to process it literally. Here's the first part of the First Amendment (the part that addresses religion), for example:

Quote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

That's it. That's all it says. In theory, a lay person can read it and understand what our founding fathers were more or less getting at. In practice, the legalese questions it fails to address are enough that trying to enforce anything with nothing more than its literal text is not unlike trying to carry water with a butterfly net. For one thing, does this law count as respecting an establishment of religion? What about this one? What about this one? And that, does that prohibit the free exercise thereof? What about that one? How do you even define what counts as respecting establishment or prohibiting free exercise? Furthermore, what even constitutes a religion, anyway?

So, Prop 8. Both sides can probably point to the same text here and use it as their justification for their side, due to the pesky nebulous gray area that is state-sanctioned marriage. Prop 8 supporters are largely religious, and can argue that forcing them to allow marriage (a religious sacrament) to gays (something their religion kind of has a problem with) is prohibiting the free exercise of their religion. Prop 8 opponents can argue that marriage is a more civil thing with legal rights and benefits, and denying an entire class of people legal standing on religious grounds would be unfairly respecting an establishment of religion. Which side wins? Think about that for a second and tell me how it breaks down, there. Oh, wait, before you do--congratulations, whichever way you were about to rule, you have applied an interpretation to the Constitution and are therefore an activist judge.

The courts, from lower state-level appeals courts and the like all the way up to the US Supreme Court, have two jobs; figure out how extremely vaguely-worded two-hundred-year-old statements apply to our crazy modern world (just what would colonial-era gentlemen like our founding fathers think about Net Neutrality, anyway?) and strike down laws that violate the spirit of the Constitution if it turns out that they do. And yes, that includes the courts sometimes overruling things that the people voted on. That's called the courts protecting minority classes from the tyranny of the majority, which is another one of their specific "that's what they're there for, you idiot" roles.

So yes, judges are supposed to be activist and robots on the Supreme Court are an impossible pipe dream, so please stop complaining about that.

(This, by the way, is why Supreme Court confirmation hearings are so meaningless these days. Everyone knows deep down that everything I said above is true except the voters, who still insist on this whole "activist judges are bad" thing, so to put on a show for them, the Senate pretends to ask hard-hitting questions about a nominee's legal agenda and the nominee pretends to answer them with meaningless promises that they'll be completely neutral and read absolutely nothing into the Constitution except what it says, they swear, the Senate pretends not to notice that that's completely impossible and votes to confirm, and everyone's time is wasted.)

Edit: Personally, I think that the big problem here is promiting marriage as an officially-sanctioned thing with legal recognition and benefits in the first place. I interpret that as a violation of the establishment clause, since they are literally respecting the establishment (via granting legal recognition and benefits) of religion (since marriage started as a religious ceremony.) I would therefore strike down the legal recognition of all marriage, period (you can still have a fancy ceremony with your local church/temple/whatever if you want to and they want to let you, but legally it won't mean anything) and replace the legally recognized part with secular civil unions which would be granted to gay, straight, everyone, and at that point they would actually be equal. But, you know, I'm an armchair activist judge like that.

[Psudo]

Kjorteo wrote:

Here's the first part of the First Amendment (the part that addresses religion), for example:

Quote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

That's it. That's all it says.

It's a slight exaggeration to say that's all a judge has to go on when interpreting the establishment clause, or any constitutional clause. Even strict constructionists allow (or, more commonly, demand) that you consider the arguments used in the legislative debate about a law, which for the Constitution means you can cite the Federalist Papers and Anti-Federalist Papers. That fleshes out the meaning of constitutional texts considerably.

We also have plenty of judicial president dating back as much as 200 years (including John Jay, who first ruled that legal precedent was binding as law and, in doing so, created the modern concept of the judicial branch of government you were just praising).

The claims of judicial activism (at least the more valid ones; empty name-calling is more common) come when judges cite foreign laws or cultural trends (which has happened a few times). Such sources carry no legal weight. It would be better to declare the law was unclear and demand the legislature address it (something that also happens sometimes).

The claims of activism still outnumber the actual cases of it many times over, but it's not an imaginary trend.

As for Prop 8, it's not even interesting to me until it inevitably gets appealed to the Supreme Court. We all know it will, so why does this particular decision even matter in the long term?

[Kjorteo]

Psudo wrote:

As for Prop 8, it's not even interesting to me until it inevitably gets appealed to the Supreme Court. We all know it will, so why does this particular decision even matter in the long term?

Well, the text of Judge Walker's ruling is one of the things that can be cited by whoever is higher up, I guess. It sort of helps to frame the debate, in that the text of the next ruling is going to have to either agree with what Judge Walker said or specifically address why they think he's wrong. I think. I could be mistaken. Presumably things like that are important in that they can be cited later and such, or the losing side of the Supreme Court cases wouldn't bother to write out their dissenting opinions.

[Psudo]

Incidentally, Ann Coulter's latest article is about the trend of "anchor babies," where illegal aliens cannot be deported if they have children born in the United States. She points out (and, as a constitutional lawyer, she'd know) that the judicial precedent was established based on a citation of book on immigration ethics written by a layperson. In other words, it cited an ethical theory rather than law (directly opposing the intent of the law's author, actually) in order to create new legal recognition of rights for illegal immigrants. That's the sort of thing thoughtful conservatives mean when they say "judicial activism."

[bootlegga]

Zipperfish wrote:

I grew up under the threat of constant nuclear annihilation, so the whole Al Qaeda thing--I can't see why people get so worked up. I mean, they're a threat, but not an existential one. They got in a sucker punch that will never be repeated, and even that, horrific as it was, was completely irrelevant from a military perspective.

But it's hard to predict the future. China is coming on line fast, in all aspects including military, and I can't help but think (much as I wish I could believe otherwise) that the Cold War will be back with China as the new nemesis. I wonder if that will be used as an excuse to fund continued military supremacy? Will we see the "proxy wars" of the last Cold War?

It's interesting to guess what's going to happen.

Odds are, whatever happens will not be anywhere as bad as the pundits predict. For decades, the West was terrified of the huge size of the Soviet bloc arsenal, yet in hindsight we've come to realize it was nowhere as effective as all those May Day parades led our press/government PR departments to believe they were. Unless there is some sort of massive military paradigm shift where every nation has to start over again, the West will maintain its military lead for a long, long time.

[Murray_Smith]

It makes perfect sense that practice of law creates self-perpetuating careers, because we live under the rule of law. Without lawyers, there would be very little in the way of law, and then, the biggest guns, rather than the most knowledgeable on law, would likely rule. Don't get any ideas, Bart.

[Calbeck]

Zipperfish wrote:

I grew up under the threat of constant nuclear annihilation, so the whole Al Qaeda thing--I can't see why people get so worked up. I mean, they're a threat, but not an existential one. They got in a sucker punch that will never be repeated, and even that, horrific as it was, was completely irrelevant from a military perspective.

Never assume that something which has been done cannot be done again. Also, the US is still plenty rife for many similar types of attacks, because almost our entire infrastructure was put in place with no consideration that it might be subject to terrorist attack. Our primary defense so far has been general ineptness on the part of the various terrorists who've tried attacks since 9/11.

For that matter, the whole point of 9/11 was its demonstrating that ignoring a given problem will not make it go away. Left to their own devices, terrorists can and will find a way to get our attention. And they will keep doing that until and unless we make them regret doing so.

Quote:

But it's hard to predict the future. China is coming on line fast, in all aspects including military, and I can't help but think (much as I wish I could believe otherwise) that the Cold War will be back with China as the new nemesis. I wonder if that will be used as an excuse to fund continued military supremacy? Will we see the "proxy wars" of the last Cold War?

We are reaching the point where we simply cannot afford continued military supremacy even if we have a "good excuse" for it. But whether that's the case or not, I expect China to make a play for Taiwan at some point, and they will not be saber-rattling or trying to cadge concessions out of it. They still consider that island part of China.

Note that China's newest major innovation are land-based missiles capable of destroying a carrier. With a range of over 600 miles, that's plenty to put an anti-US-Navy umbrella over Taiwan.

[noufie]

Murray_Smith wrote:

It makes perfect sense that practice of law creates self-perpetuating careers, because we live under the rule of law. Without lawyers, there would be very little in the way of law, and then, the biggest guns, rather than the most knowledgeable on law, would likely rule.

An abundance of lawyers isn't always proof of a more humane society. How do you think government enforces law? To paraphrase Max Weber, government is the monopoly on violence

It’s tough not to sound like an old grouch when complaining about too many lawyers. Even old Shakespeare complained about lawyers, yet life went on.

But Robert Putnam’s book Bowling Alone pointed out an interesting statistic. In 1970 America had fewer lawyers per capita than it did in 1900. From 1970-2000, the number of lawyers in America nearly tripled. Putnam’s take is that lawyers exist to impose an artificial sense of trust. After all, people tend to sue when someone else refuses to honor an agreement. So the abundance of lawyers reflects the larger trend of eroding social trust.

Regardless of the explanation, something new is happening.

Calbeck wrote:

Believe it or not, I feel much the same way about our standing military. It is a necessity to have one, of course, but the huge size of it was only justified by the Second World War and subsequent Cold War. Even after WWI, we demobilized and went back to our "cadre-plus-militia" system (though we also updated the "organized militia" and integrated those units into the modern National Guard roughly around WWI).

In defense of the military, very few people think of it as a place to get rich. A select few highly ranked officers may be paid well. Everyone else is solidly middle class. Those with the most financial ambition are much better off in the private sector. Same can not be said of lawyers.

[PublicAnimalNo9]

YOu reach the top of a mountain and standing before you are a lawyer and a terrorist. Who do you push off first?







The terrorist of course, business BEFORE pleasure

[Quantum_Wizard]

noufie wrote:

In defense of the military, very few people think of it as a place to get rich. A select few highly ranked officers may be paid well. Everyone else is solidly middle class. Those with the most financial ambition are much better off in the private sector. Same can not be said of lawyers.

But on the other hand military equipment causes high costs even if personnel didn't have lawyers' salaries.

[Murray_Smith]

noufie wrote:

An abundance of lawyers isn't always proof of a more humane society. How do you think government enforces law? To paraphrase Max Weber, government is the monopoly on violence

In order for the law to have any meaning, those who break it must be punished fittingly.

Quote:

It’s tough not to sound like an old grouch when complaining about too many lawyers. Even old Shakespeare complained about lawyers, yet life went on.

I am actually happy that the lawyers rule. I would much rather be sued over a misunderstanding than killed over it.

Quote:

But Robert Putnam’s book Bowling Alone pointed out an interesting statistic. In 1970 America had fewer lawyers per capita than it did in 1900. From 1970-2000, the number of lawyers in America nearly tripled. Putnam’s take is that lawyers exist to impose an artificial sense of trust. After all, people tend to sue when someone else refuses to honor an agreement. So the abundance of lawyers reflects the larger trend of eroding social trust.

The main job of a lawyer is to keep her client on the friendly side of the law. My interpretation is that the laws have become increasingly complex, which allows for more niches in legal expertise.