Monday, March 21, 2005

Did you hear that? A.H. just turned over in his grave.

I will be the first to admit that I am no expert in constituional law. I have a great deal to learn about the Constitution and the law. And I will admit that My fellow RWCers are better versed in this area than I am. That being said, It feels wrong.

Byron, your point about Article III states that the courts have appellate jurisdiction and that Congress can pass laws that effect this. Yes. However, I interpret that to mean that the Supreme Court has appellate jurisdiction over federal cases and Congress can pass laws effecting that, not state cases. If this is the case as you say, why do we have State Supreme Courts? Why not just have all appeals of both federal and state matters go to the Supreme Court? This is a state issue. It is only federal because Congress stepped in and made it federal. The Constitution does not specify that appeallate jurisdiction extends to non-federal cases, and I have to believe that it was not the Founders' original intention to have it do so.

Craig, you talk about marriage and its sanctity. Some people would argue that perhaps a husband and wife relationship automatically trumps a parental relationship. I happen to believe that the two exist on a lateral plane. It is too difficult to differeniate between the two. Who has more rights? I do not believe this is a Congressional question. Also, you talk about political capital. This is all this is, and you guys know it, it is strictly political, and that seriously bothers me.

Kris, the point you made about leaving it to the state until no further appeal can be made is correct. It went through the system. But, the point of having states is that they go through the process and thats it. The decision was made. It doesn't continue if the majority power disagrees with the decision of countless courts, or because of the Governor's last name.

Of course, legal loophole arguments can and will be made. But I'm calling it how I see it. Congress intervened in a personal matter to legislate with the express intention of affecting an individual. Under my Constitutional understanding, Congress cannot pass laws regarding individuals, and this is wrong. They cannot target one indivdual like they did last night. It is wrong to step in and interfere with such an important idea as Federalism simply because a group of people does not agree with the decision of the court. A.H. would be ashamed.


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  • Timmy,

    The only way this is political is that Congress is bailing out the brother of the sitting President, who got himself into this mess a long time ago. In all other ways, it is stupid politically for the Republicans to do this. I think you have unwittingly fallen hook-line and sinker for the liberal media propaganda of the Republicans being indebted to some radical religious lobby. It simply is not the case.

    By Blogger Craig, at March 21, 2005 at 1:29 PM  

  • If by liberal media you are referring to the "conservative" rhetoric of the Republicans in last night's debate, then yes.

    By Blogger Timmy, at March 21, 2005 at 1:35 PM  

  • Tim,

    Wow I'm not quite sure what just happened. I'm not used to starting off a comment without addressing it to Jordan.

    Tim, you spoke of Alexander Hamilton and how the Founders would be turning over in their grave. You're right to some extent but in one important aspect you are very wrong. I find it interesting that you chose Hamilton in your post. I too am a big fan of Hamilton, as you well know. But the reason why I favor a Hamilton over a Jefferson is because I believe that Hamilton would use federal power when he felt it necessary for the good of the union. If you need convincing on the subject see the debates of the First Congress regarding the National Bank. Allow me to quote from Hamilton's Opinion on the Constitutionality of the Bank (written in 1790 to Washington, in opposition to Jefferson's restrictive reading of "necessary and proper" clause and the appropriate exercise of Congressional power):

    "The degree in which a measure is necessary can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency. The relation between the measure and the end; between the nature of the mean employed toward the execution of a power, and the object of that power, must be the criterion of constitutionality, not the more or less of necessity or utility..."

    Allow me to also quote from Federalist 9 (written by none other than Alexander Hamilton):

    "A distinction, more subtle than accurate has been raised between a confederacy and a consolidation of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration...These positions are in the main arbitrary; they are supported neither by principle nor precedent. It has indeed happened that governments of this kind have generally operated in the manner, which the distinction, taken notice of, supposes to be inherent in their nature - but there have been in most of them extensive exceptions to the practice, which serve to prove as far as example will go, that there is no absolute rule on the subject. And it will be clearly shewn, in the course of this investigation, that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government.
    (emphasis added by me)

    Tim, you would be more at home more with the philosophies of Senator John C. Calhoun (D-SC) and his many works that philosophically paved the way for secession and the Civil War. Below are a few excerpts, including Calhoun's Speech on the Oregon Bill (1848) and Calhoun's Resolutions on State Sovereignty and Slavery (1837):

    Oregon Bill:
    "There is a very striking difference between the position on which the slaveholding and non-slaveholding States stand, in reference to the subject under consideration. The former desire no action of the Government; demand no law to give them any advantage in the territory about to become established; are willing to leave to all their citizens, so long as they continue to be territories - and when they cease to be so, to leave it to their inhabitants to form such governments as may suit them, without restriction or condition...In short they are willing to leave the whole subject where the constitution and the great and fundamental principles of self-government place it. On the contrary, the non-slaveholding States, instead of being willing to leave it on this broad and equal foundation, demand the interposition of the Government, and the passage of an act to exclude the citizens of the slaveholding States from emigrating with their property into the territory..."

    Resolutions on State Sovereignty and Slavery:

    "Resolved, That this Government was instituted and adopted by the several States of this Union as a common agent, in order to carry into effect the powers which they had delegated by the Constitution for their mutual security and prosperity; and that, in fulfillment of this high and sacred trust, this Government is bound so to exercise its power as to give, as far as may be practicable, increased stability and security to the domestic institutions of the States that compose the Union..."

    Now, I for one am in favor of states' rights. But I view this doctrine not as one that chokes all power from the federal government, but instead leaves to the federal government all necessary and proper powers for faithfully executing the laws and principles of this great country. Life is certainly one of those principles, just as liberty and equality are also among these principles (which we happened to fight a civil war about). In the spirit of this lively discussion I'm reminded of a passage that I love from President Abraham Lincoln:

    (From his speech at Indianapolis, Indiana on Feb. 11, 1861)

    "If a State and a county, in a given case, should be equal in extent of territory and equal in number of inhabitants, in what, as a matter of principle, is the State better than the county? Would an exchange of names be an exchange of rights? Upon principle, on what rightful principle, may a State, being no more than one-fiftieth part of the nation in soil and population, break up the nation and then coerce a proportionably larger subdivision of itself in the most arbitrary way? What mysterious right to play tyrant is conferred on a district of country with its people by merely calling it a State? Fellow-citizens, I am not asserting anything. I am merely asking questions for you to consider. And now allow me to bid you farewell."

    By Blogger Kris, at March 21, 2005 at 1:45 PM  

  • Tim,

    It's my understanding that Congress expedited the appeals process from the state-level to the federal court. In other words, they are not exercising jurisdiction over the state courts. If I am wrong, please correct me. But I am pretty sure that there would have been another appeal filed to a federal judge after the outcome.

    Also, I was discussing this with Kris. The concept of federalism, for better or worse, disappeared after the Civil War. The conflict demonstrated that the federal government ultimately had sovereignty. The 14th amendment also stripped away any remnants of 'federalism'.

    Nevertheless, I understand the rationale of your position and concerns. I too am concerned about the role of the federal government over-extending itself. But if you feel that states' rights and 'federalism' should triumph over the 'sanctity of life' (believe me when I say this is more than just Terri Schiavo...we all know its political), I cannot agree. This won't establish judicial precedent, but it is a principled stand for what Republicans uphold to be right, and that's the right to life.

    Naysayers will compare apples to oranges and say why don't we intervene in Sudan or prevent cuts in Medicare. Those are perfectly fine issues to debate, but are not comprobable to this issue. Likewise, would we argue euthanasia/right to life issues when we're arguing about intervention in Sudan or Medicare? Don't think so.

    By Blogger Byron, at March 21, 2005 at 5:18 PM  

  • What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

    That's from Justice Steven's dissent in Bush v. Gore. I think this has less to do with federalism than it does with separation of powers and the idea of an independent judiciary. The sustained ideological assault against the concept of an independent judiciary -- components of which include this weekend’s radical rewriting of the separation of powers, Bush’s attempt to pack the appellate court with radical extremist judges and the Republican’s zealous efforts to strip the courts of law of any jurisdiction on incredibly polarizing issues like gay marriage -- is itself only one small facet of the pervasive tendency of modern Republicans to, as Sam Rosenfeld says, “disregard wholesale the integrity of codified processes and the autonomy of institutions, to change the rules and to politicize all conflict in the service of totally unprincipled and narrow political objectives.”

    Byron, you say that “it is a principled stand for what Republicans uphold to be right, and that's the right to life.” But if this were an argument, or a debate on the floor, or a column, or anything else, that would be fine. What we’re seeing here is a show meant to convince the American people that any judge that doesn’t agree with the GOP is “legislating from the bench” or is “an activist judge”

    We’re a law-based society. Rules matter. Precedents matter. Separation of powers and institutional autonomy matter. To the Republicans in power and the vast conservative web of think tanks and PACs guiding their policies and political activities, apparently, such things don’t matter at all. If they did, we’d have respected the fact that these state judges are fully capable and entitled to make rules.

    I wonder if judges throughout the country realize that they must now be whores for the right wing or they will be slandered for being unpardonably biased any time they rule against the interests of radical Republicans? Do they know that any judgment that differs from Randall Terry's or Tom DeLay's is no longer attributable to a difference in legal opinion but is instead considered a reflection of their dishonesty, corruption and lack of understanding of the Constitution? Perhaps many of them don't mind being a rubber stamp for Grover Norquist and Jerry Falwell. It certainly makes the job easier.

    So you guys can debate about whether federalism is dead, while we all know neither party is actually committed to federalism. Let’s ask all the states that have passed medical marijuana laws why the DEA is still making marijuana arrests in their state. Let’s ask Florida why it wasn’t able to continue the recount in 2000. What if, say, a Democratic congress used their power as a majority to step in on a non-binding and one-time case, take a court case involving two men that wished to be married, and a state court had continually said no, what if they took it to Ninth Circuit, just because they deserved one more day in court? I know that’s not about life and death, but the analogy is the same. Reverse the actors, and this would be a shit storm in the opposite direction.

    By Blogger rabbit, at March 22, 2005 at 9:49 AM  

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