Thursday, February 9, 2017

Why original constitutionalism is the only real "fair" way to rule...

Let's focus on what things we should all agree on when it comes to our judicial system:
  • That everyone should be treated fairly.
  • That the law should be objective and fair.
  • That there should be consistency in the process. 

Now, admittedly not everyone probably agrees with these principles, but I am more than convinced that they should. At least they should if they were truly honest about wanting a fair and impartial judicial system. Problem is that I don't believe that everyone actually wants a fair and impartial judicial system. I thinks some people see the judicial system as a means to an end that doesn't necessarily have anything to do with fairness.

But let's assume that I am wrong about my suspicions, and that everyone really would like to see a fair judiciary process.

Let's start with a quick analogy regarding the arbitration of rules. Everyone inherently knows that when it comes to things like reffing football, that there are going to be calls that are clearly subjective. The referees are many times forced to make a judgement call. But those judgement calls are supposed to be made based on the rules set in place at the beginning of the season.

Now at the end of every football season the "rules committee" meets and discusses changes to or possibly even new rules. Pass interference has been one that the rules committee has gone back and forth on. In many ways, the rules on pass interference has been like the "living document" that many on the left would like the constitution to be. One year, it's okay to face mask, the next year not so much. One year you are allowed to initiate contact in certain situations, the next year it's a penalty. The only constant to pass interference seems to be change.

But... those rules are set at the beginning of the season, everyone is given the opportunity to learn about the changes, and the calls for that season are designed to use whatever new set of rules are currently in place. What doesn't happen, and would never happen, is that sometime during the third quarter of a game one of the referees decides on his own that the meaning of pass interference should be changed at the core, and that he will now decide to make his judgement based on the new meaning he just came up with.

Now we can all see why it would be unfair for a referee to change the rules in the middle of a football game. Quite obviously we inherently understand that the players need to know the rules they are playing under when the game starts, and they should be able to rest assured that those rules are not subject to the whims of another person's singular opinion on how those rules should be evolving. This is a fundamental basic common ideal of fairness that we all should have learned when we were in grade school. (You don't get to change the rules in the middle of a game).

Can anyone tell me why life should have any less protection from arbitrary rule changes than a football game does?

You see, when a Justice takes it upon himself to decide that there is something in the constitution that requires an interpretation or decides that a legal statute means something different than what is actually written into the statute, he or she is quite literally changing the laws of society on the fly. Unlike a rules committee, which discusses rule changes, and then lets everyone know what the new rules will be... this Justice provides no such advance warning that the rules and laws of society have changed.

Moreover, the Justice is literally changing the laws "after" the events that are in question have taken place. There would be no way for the Parties involved to have known that the Justice in question was going to reinterpret the meaning of the law, that in nearly all cases had historically been already set. They were living and behaving under the old laws, and the Justice is expecting that they should have behaved as he or she would like to see the law interpreted. 

Now if we all agree (and again we all should agree)  that the fair way to go about any arbitration of rules or laws  is to let people know when a rule or law has been changed prior to changing them, so that the people involved understand what rules they are living by: then it's clear that it should no more be up to a "justice" to change the interpretation of  rules or laws, than it would be for a football referee to do so. In fact, unless anyone is willing to suggest that "life in general" is less important than a football game, then we should be "more" inclined to demand that Judges and Justices follow the rules as written (not as they would otherwise interpret them).

So how do you solve this? You require your Justices to rule on the purest simplest most easily agreed upon factual reading of the constitution, the precedents, and statutory laws. If the statute says something specific. That's your statute.

This resolves two problems. First and foremost, the Judge doesn't get to declare that a statute meant something different than it states, because that is simply not fair to the people following it. Secondly, the best way to guarantee consistency of judicial reasoning is to take the constitution, precedent, and laws at their simplest and most obvious meaning. Wouldn't it be nice to believe that a Federal Judge on the First Circuit nominated by George W Bush would generally rule the same way as a Federal Judge on the Ninth Circuit nominated by Barack Obama?

At the end of the day, if the Country is not happy with how a law or statute is actually written, then they get the rules committee (Congress) to change it. If they are not happy with how something is written into the constitution, then they can amend it. Then, everyone understands the law of the land is different, and they can live and behave accordingly to the changes.    

Tell me why I am wrong?


rrb said...

well, the fact remains that liberals "feel" and conservatives "think."

the man gorsuch is replacing frequently ruled against how he personally "felt" about an issue due to the fact that he was required to "think" about the issue in the context of its constitutionality.

the constitution is dead, not living, and should our republic survive 10,000 years it should always be the bedrock, the foundation, upon which the nation is both founded and governed.

should liberals eventually desire the "right" to marry a herd of fucking goats, that needs to be settled via legislation, not a court ruling.

Roger Amick said...

1: On the original intent philosophy, strictly speaking, our system is designed to make it difficult to make major changes in the Constitution. It was intentionally designed to limit impulsive political actions. I understand why, because public opinion can swing on events.

2: It is a partisan political philosophy. Defining the meaning of the original intent of a document written 240 years ago, in the end has been politicized. Dred Scott v Sanford, was a strict original intent decision led the country into The Civil War.

3: I think that original intent limits the courts ability to address to act on charges that were not even considered by the Founding Fathers.

4: I think that the judicial branch can address changes in the societal situations.

5: I know that changes in the interpretation have been very successful, the decision that demands gay or trans gender marriages must be accepted.

6: Loving V Virginia was an interpretation of the Constitution that was not addressed in the Constitution.

7: I believe that the judicial branch can address issues that didn't exist when they wrote the Constitution.

8: Those decisions can be reversed, sometimes by congressional action, or amendment solutions.

9: I completely understand why you support the original intent philosophy. But I think that if we must very carefully choose the justices, who make decisions. Neil Gorsach is an appropriate nominee. His decisions show that he's not going to be as strict as you want. His comments on the "demoralizing" comments on the President's attacks on the judges on the ninth circuit court exhibited a strong sense of what is right.

10: I understand that it can be a slippery slope to inappropriate decisions. But we the people have the power to reverse decisions not based on original intent.

11: This is why I don't agree with you.


FYI to some regulars, this is the opinion of Roger Amick.

Roger Amick said...

There was a a major event yesterday, that the President has attacked the judicial system at it's core. In his comments yesterday, he implied that he may act in defiance of the judicial system. We both know that it's an attack on the Constitutional system. He could trigger a Constitutional crisis, or even impeachment.

And WTF is it appropriate for the President to attack Nordstroms with a tweet????

Roger Amick said...

"the Constitution is dead"

Just shaking my head at that comment.

C.H. Truth said...

But we the people have the power to reverse decisions not based on original intent.

Actually no Roger... here is where you are wrong. THE PEOPLE should have the power to change the constitution or the laws if they are no longer correct. THE PEOPLE should be the ones who decide when something should change and to what degree those things change.

When a Justice (or Justices) walk in and make changes, it literally takes the rights of THE PEOPLE away from them to make the changes themselves.

Lastly... understand that you may will be empowering Clarence Thomas, John Roberts and the conservative bloc of the Supreme Court (which may be conservative the rest of your life) to substitute their collected five or six person opinion for whatever will is otherwise left of THE PEOPLE.

Gay marriage could be reversed.
Abortion could be reversed.
Gun laws could be loosened.
Freedom of religion could be expanded to protect bakers and caterers.

Etc, etc, etc... all because the will of those five people is more powerful than the will of THE PEOPLE.

Bottom Line Roger... would you be willing to justify those decisions under the same logic you make your argument? Would you make the same case once the USSC is hostile to your positions and start reversing them?

Roger Amick said...

"Bottom Line Roger... would you be willing to justify those decisions under the same logic you make your argument? Would you make the same case once the USSC is hostile to your positions and start reversing them?"

1: A conservative court is unlikely to reverse precedent.

2: The rights of THE PEOPLE, are limited by the law every single day. We have to obey the law.

You just love to attack the extension of freedom. Caterers and bakers should not be allowed to discriminate based on their religious beliefs. The separation of church and state are in the first amendment. That applies to everyone.

Roger Amick said...

The Supreme Court has granted civil rights to corporations. Is that original intent? Yet you agree with the decision.

Roger Amick said...

Life calls.

I will be back.

C.H. Truth said...

Moreover Roger...

Your entire argument is that you believe that the Courts should have the power to change laws, and that the Courts are the ultimate arbitrators of how the constitution should change, and that you basically trust the courts to decide "for you" how you should live your life.

You make no argument that this authority exists anywhere, and you make no real argument as to why you feel it so important to give up your own rights as a citizen to be part of the process of how our country may change.

Lastly, none of your arguments are singular to the courts. They all apply to Congress as well.

To address your arguments:

1) It would be easier for a single Justice or a hand full to be "impulsive". The fact that you suggest that the founding fathers thought this to be bad and made thing difficult, would apply to the Courts. Probably more so. Unless of course you believe that not wanting to be impulsive is a bad thing? You must believe that impulsiveness is good?

Secondly, we would both agree that intent has become "political" - which is why we need at least one branch to "not be". Your argument seems to be that if we are going to be political, then it might as well be the courts deciding (on politics). I believe that the courts should arbitrate the laws, not be political, and allow the politics to play out in the legislation (according to THE PEOPLE and the voters). By your own argument, you are saying that making these decisions "politically" is good. I think the courts should stay out of politics.

3) The founding fathers gave that authority to THE PEOPLE and the legislature that respresents them. Not the courts.

4 + 5 + 6 + 7) You think? That's not an argument. That is you stating that the ends justified the means. What if they got them all wrong in your opinion? Would you make the same argument?

8) Addressed previously. It's a factually incorrect statements. Many USSC decisions are beyond "change" through the people. Laws are not and can be changed as things change. They are designed that way. Because the Courts are supposed to be (by founding father design) only looking at the law, the precedents would always be valid. If you put it on the courts to make those changes, then a precedent is never really a precedent. The next court can argue that they are simply following societal changes (provides the ability to overturn everything from gay marriage to abortion)

9 and 10) If we had Neil Gorsuch's on the court, abortion and gay marriage would state rights issues. You would not be happy with that.

opie said...

Caterers and bakers should not be allowed to discriminate based on their religious beliefs. The separation of church and state are in the first amendment. That applies to everyone.

Dayum brilliant observation, Roger. CH believes free speech should be limited to those who have corporations who would rather pay to lobby than their low wage earners that work for them .

KD, Obama said...

: The rights of THE PEOPLE, are limited "

Assbackward UCLA Barbie

Nope, Actually the Rights of the People come before those of the Government, my god how stupid is HB. Remember Obama's bitch that the government is too restrained and the WE THE PEOPLE are too free.

Here let me help you understand Obama.

Obama’s radio interview offers four main take aways, which I summarize using his own words where possible:

First: “We still suffer from not having a Constitution that guarantees its citizens economic rights.” By positive economic rights, Obama means government protection against individual economic failures, such as low incomes, unemployment, poverty, lack of health care, and the like. Obama characterizes the Constitution as “a charter of negative liberties,” which “says what the states can’t do to you (and) what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf.” (Ask not what you can do for your country but what your country can do for you, to paraphrase John F. Kennedy).

Second, Obama regrets that the Constitution places “essential constraints” on the government’s ability to provide positive economic rights and that “we have not broken free” of these Constitutional impediments. Obama views the absence of positive economic liberties that the government must supply as a flaw in the Constitution that must be corrected as part of a liberal political agenda.

Third, Obama concludes that we cannot use the courts to break free of the limited-government constraints of the Founders. The courts are too tradition and precedent bound “to bring about significant redistributional change.” Even the liberal Warren Court “never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society.” Obama opines that the civil-rights movement’s court successes cannot be duplicated with respect to income redistribution: The “mistake of the civil rights movement was (that it) became so court focused” and “lost track of the political and community organizing and activities on the ground…In some ways we still suffer from that (mistake)."

Fourth, Obama argues that economic rights that the state must supply are ultimately to be established at the ballot box. Those who favor redistribution must gain legislative control through an “actual coalition of powers through which you bring about redistributive change.” The electoral task of a redistributive President is therefore to craft coalitions of those who stand to benefit from government largess. The legislature, not the courts, must do this “reparative economic work.” Obimbo the assclown

KD said...

Opie, Good morning how you are well.

KD said...

Hope you are doing well Opie.

rrb said...

Roger Amick said...
There was a a major event yesterday, that the President has attacked the judicial system at it's core.

relax drama queen. un-clutch those pearls.

mitch telling fauxcohantas to shut the fuck up was a bigger deal.

but neither come close to a constitutional crisis.

KD, Lizzy Warren is the Face of the Dems said...

The President is "Brier Patching" the left every day, he tweets they run into the brier patch get lost and then scream that high pitched scream of a frightened rabbit.

I so enjoy watching the liberals loss battle after battle with Trump and his Cabinet Appointees.

Historic how the left has shamed themselves by slowing the People's work and not having all of The President's Appointees confirmed, never in modern history has it taken so long.

Anonymous said...

Those who are confident, attractive, and successful will demand that they be in charge of their own lives and not leave it to other people to run their lives and tell them what to do. Those who are not confident, unattractive, and unsuccessful will demand that others make decisions for them, and protect them from their own inadequacies. Not hard to tell who is who around here.

rrb said...

Blogger Roger Amick said...
"the Constitution is dead"

Just shaking my head at that comment.

of course you are. we believe the constitution to be made of granite, while you assholes think it's made of fucking silly putty.

caliphate4vr said...

Organizers of the anti-Milo Yiannopoulos demonstration last week at UC Berkeley that ended in $100,000 worth of window-breaking chaos declared it a “stunningly successful” protest — one they’ll happily repeat if the right-wing provocateur tries to return to campus.

“We are happy with the results,” said UC Berkeley Law School alumnus Ronald Cruz of the group By Any Means Necessary, or BAMN. “We were able to meet Mr. Yiannopoulos’ fascist message with massive resistance.”

An estimated 150 “black bloc” anarchists attacked police with rocks and fireworks and used barricades to smash windows at the student union Feb. 1, forcing the cancellation of Yiannopoulos’ appearance.

“We are not affiliated with them, but were united in shutting down the Milo event,” Cruz said.

“Everyone played a part,” he said. “Some engaged in breaking windows — others held signs and made sure that the fascists and the police did not attack anyone.

“This was self-defense,” Cruz said. “Windows can be replaced. People can’t be.”

I wonder if the dwarf Reich will apologize?????

rrb said...

I wonder if the dwarf Reich will apologize?????

fuck no. he's a liberal. lying is hardcoded into their DNA. plus, no one in the msm who interviews him next will call him out on it.

lying with impunity is easy when there are never any consequences.

rrb said...

heh. stolen valor scumbag blumenthal got stomped into a puddle by trump today.

KD, Liberals WON that ONE , Right? said...

Reich will apologize?????"

Like Rat Said.

This is an attack on the people of California Tax Payers that will have to pay the bill. The Administration of that college failed to protect the student and the Buildings.

Failure is owned by them.

Roger Amick said...

President Trump’s travel ban remains blocked: An appeals court rejected a bid to reinstate it. An appeal to the Supreme Court is likely.

WASHINGTON — A federal appeals court on Thursday refused to reinstate President Trump’s targeted travel ban, delivering the latest and most stinging judicial rebuke to his effort to make good on a campaign promise and tighten the standards for entry into the United States.

The ruling was the first from an appeals court on the travel ban, and it was focused on the narrow question of whether it should be blocked while courts consider its lawfulness. The decision is likely to be quickly appealed to the United States Supreme Court.

That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.

Trial judges around the country have blocked aspects of Mr. Trump’s executive order, which suspended travel from seven predominantly Muslin countries and limited the nation’s refugee program, but no other case has yet reached an appeals court.

The decision, from a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, reviewed a ruling issued last Friday by Judge James L. Robart, a federal judge in Seattle. Judge Robart blocked the key parts of Mr. Trump’s executive order, allowing immigrants and travelers who had been barred entry to come into the United States.

Judge Robart’s ruling inspired a harsh attack from Mr. Trump, who accused the judge of endangering national security. After the appeals court heard arguments on Tuesday, Mr. Trump issued a pre-emptive critique on Twitter.

“If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled,” he wrote. “Politics!”


In the unanimous ruling,they did not think it will endanger the United States. Two of the judges were appointed by Democratic Presidents.

KD, Lizzy all Dizzy better sit down and shut up said...

Pocahontas hissy fit over being told to shut up and sit down, thin skinned red skin.

Epic Tweet Rant from the Face of the Democrat Party

KD, HB WIns, America Losses said...

Terrorist are coming into our country, the blood is on the hands of your ilk HB.

Democrats Hate the Voter. That is crystal Clear.

Roger Amick said...

The judges said it was a Muslim ban.#racistrodentbastard will lose his mind.

Roger Amick said...

All the reports on the White House, is that the ban was written in haste, and the President Tweet Trump® was in a hurry.

Trump said "SEE YOU IN COURT" and said it "political'.

Roger Amick said...

Steve Bannon is the driving force behind this. He thinks the election of Trump is going to result in the Apocalypse.

Roger Amick said...

In a unanimous decision, the judges rejected the Trump administration's argument that courts could not challenge the president’s executive order: "The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” The judges argued there was no precedent to support this argument, saying that it "runs contrary to the fundamental structure of our constitutional democracy." It also noted "the serious nature of the allegations the States have raised with respect to their religious discrimination claims.”

caliphate4vr said...

Just makes the nuke option for SCOTUS that much easier

You're going to rue the day Dingy Harry went there

Myballs said...

Out of 175 9th circuit court decisions to go to the scotus, 140 have been reversed or vacated, the most of any circuit.

Commonsense said...

The ruling is about what I expected from the 9th circuit.

Full of political opinion and nothing on the law.

We now live in a judicial tyranny.

opie said...

We now live in a judicial tyranny.

Hilarious menstral boy. We now have a tyrant in the WH which you seem to think is fine. Go buy a dress from Ivanka and make donnie happy. LOL

KD said...

Democrats Hate the US Voters. They Hate what we did, making this guy in charge, their hissy sissy fit continues.

Sessions is not the AG.

Winning BIGGLY.

KD, Dizzy Lizzy Warren the Face of The Dem Party said...

caliphate4vr said...
Just makes the nuke option for SCOTUS that much easier..."

I was glad to see that President Trump took the safety OFF.

HE could follow in the steps of FDR and Pack the USSC.

cowardly king obama said...

Shine some light on the 9th

Another HUGE WIN for Trump and AMERICA in the longer run

Democrats serving softballs up to Republicans, thinking "they" won


Commonsense said...

The Ninth Circuit’s Power Grab

This expands on what CH wrote plus presents a alarming argument that the judiciary has become more of a danger to the republic than any jihadist.