Sandra Day O'connor warns of US dictatorship

[jem]

Quote from kjkent1:

I don't do email from this site. You can send me a PM if you want.

As for the argument that the court's primary duty is to the litigants, just read my post to Achillies here. You know the law and how it works. I have no idea why you're attempting to refute the notion that the court's primary role is to resolve controversies. Of course judges must uphold the Constitution and the laws, but courts don't do ANYTHING at all until someone comes knocking with a dispute. The judicial branch is completely reactive.

I was addressing your concept that the courts must be pragmatic as you defined it. Not the above. I will send you the P.M. now.

 

[kjkent1]

Quote from Haroki:

Of course it has relevance. Where do I say it has none ?

Isn't the reason why I would argue that point is that you come here saying how unbiased and trained and blah, blah, blah you are, and because of that, your position on the matter of law should hold more weight?

Your bias is - that the courts should be able to 'bend' laws to fit the case before them. And you do a fine job in your arguements.

However, wouldn't you say that your blindness to this would allow you, in good conscience, to trample the rights of others ? And all because you truly believe that you are unbiased ?

I don't ask you to adopt my position. You can read what I have to say, and decide as you choose. If you think that there is anyone alive today who can accurately discern the exact intent of the Founders of the U.S., by reading the Constitution and the Federalist Papers, and you believe that this is the correct means of adjudicating law, then you're entitled to your opinion.

I believe such a position is poorly thought out. Most judges can't figure out the intent of a contract written a year ago, with all parties alive and presently appearing. I would prefer a judge who will find a pragmatic resolution to a problem, then one who will try to pretend to be able to read between the lines where there are ambiguities that cannot be resolved without guessing.

Originalist Constitutional jurisprudence, is essentially gussing. Pretending to know anything more than what is actually written down in the Constitution is disingenuous at best, and the Constitution's language is anything but specific in most places.

If the language weren't arguable, lawyers and judges wouldn't have spent the past 235+ years arguing over it. Which just goes to show that it is extremely ambiguous and open to interpretation.

As for your comment that I could use my blindness to trample the rights of others in good conscience, the question is so filled with ambiguities that I wouldn't even know where to start discussing it.

 

[AAAintheBeltway]

Quote from kjkent1:

I don't ask you to adopt my position. You can read what I have to say, and decide as you choose. If you think that there is anyone alive today who can accurately discern the exact intent of the Founders of the U.S., by reading the Constitution and the Federalist Papers, and you believe that this is the correct means of adjudicating law, then you're entitled to your opinion.

I believe such a position is poorly thought out. Most judges can't figure out the intent of a contract written a year ago, with all parties alive and presently appearing. I would prefer a judge who will find a pragmatic resolution to a problem, then one who will try to pretend to be able to read between the lines where there are ambiguities that cannot be resolved without guessing.

Originalist Constitutional jurisprudence, is essentially gussing. Pretending to know anything more than what is actually written down in the Constitution is disingenuous at best, and the Constitution's language is anything but specific in most places.

If the language weren't arguable, lawyers and judges wouldn't have spent the past 235+ years arguing over it. Which just goes to show that it is extremely ambiguous and open to interpretation.

As for your comment that I could use my blindness to trample the rights of others in good conscience, the question is so filled with ambiguities that I wouldn't even know where to start discussing it.

Kent,

You have a valid point regarding how the Drafters would have felt about things like the internet that they could not have even imagined. However, discerning their intent on many other issues is relatively simple. We need only look at contempary practice when the Constitution or Amendment was adopted. For example, the debate over capital punishment should be foreclosed as it was common practice at the time and there is nothing to indicate they regarded it as cruel and unusual punishment.

 

[ZZZzzzzzzz]

Oh yes. Capital punishment was the practice of that day.

So was slavery, child labor, women having no right to vote.....

Quote from AAAintheBeltway:

Kent,

You have a valid point regarding how the Drafters would have felt about things like the internet that they could not have even imagined. However, discerning their intent on many other issues is relatively simple. We need only look at contempary practice when the Constitution or Amendment was adopted. For example, the debate over capital punishment should be foreclosed as it was common practice at the time and there is nothing to indicate they regarded it as cruel and unusual punishment.

 

[kjkent1]

Quote from AAAintheBeltway:

Kent,

You have a valid point regarding how the Drafters would have felt about things like the internet that they could not have even imagined. However, discerning their intent on many other issues is relatively simple. We need only look at contempary practice when the Constitution or Amendment was adopted. For example, the debate over capital punishment should be foreclosed as it was common practice at the time and there is nothing to indicate they regarded it as cruel and unusual punishment.

I don't have a personal problem with capital punishment, per se, as long as we recognize that it is not been proven to be a an effective deterrent to criminal activity, but rather that its purpose is to vindicate the victim and society's right to expect reasonable compliance with the laws.

What I'm trying to convey, apparently, not very well, is that it still amounts to a guess. No doubt capital punishment, hangings, firing squads, etc., all common practice at the time of the Founders, might be look upon by the founders today, were they alive, as no longer reasonable -- or reasonable, or who knows what -- but, a guess, nevetheless.

So, it's not that Scalia's originalism, nor Breyer's liberal interpretation, or O'Connor's pragmatism (or, inconsistency, if you'ld rather), is right or wrong, but simply that I think that the legal system works better when judges focus on the litigants, and leave the scholars and politicians to decide the long term policies.

When the Supreme's announce a "rule," it's almost always a compromise and it almost alway's pisses some political group off. So, I'd rather they stop making all encompassing rules and concentrate on resolving the case at hand.

 

[AAAintheBeltway]

So really you just don't like the common law system. You'd prefer more of a civil law system.

 

[kjkent1]

Quote from AAAintheBeltway:

So really you just don't like the common law system. You'd prefer more of a civil law system.

I don't know how you infer this conclusion. The civil law system is FAR more deterministic than the common law system, because in the civil law, there can be but one legal outcome to any legal question, and wherever a new question arises, the ideal civil law court refers its problem to the legislative body to provide an answer.

In my view, then, the civil law system is an extreme form originalism.

 

[AAAintheBeltway]

You don't seem to like the common law's use of precedents. I understand you rlack of enthusiasm for civil law, which frankly i don't understand very well in any case.

 

[kjkent1]

Quote from AAAintheBeltway:

You don't seem to like the common law's use of precedents. I understand you rlack of enthusiasm for civil law, which frankly i don't understand very well in any case.

I think the primary difference between originalism and a pragmatic view, is not that there is less respect for precedent, but rather that there is more room for judge made law.

Where pragmatism differs from originalism, is that the pragmatic judge is not afraid to make law only for the litigants in order to solve the problem at hand, whereas the originalist/strict constructionist will allow the one law view to control, even if it results in an unjust outcome.

Whereas the liberal interpretation/natural law judge will bend the law out of shape for all future litigants, and this is what I believe you find unacceptable, because it defeats the legislative intent.

I don't think rational legislators would be so quick to judge the courts as operating in an activist manner if the legislators could depend on judges not imposing their rulings over all future cases.

Some would argue that the Equal Protection Clause forbids the pragmatic outcomes because it treats different litigants differently. But, it doesn't, because every litigant has a different set of facts, so no two litigants are really in exactly similar circumstances for equal protection purposes.

What I'm in search of is a compromise between the extreme view from either side -- liberal or conservative.