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Post by ken on May 5, 2014 12:44:18 GMT -6
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Post by Flitzerbiest on May 5, 2014 13:10:58 GMT -6
I have no idea what you are trying to say.
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Post by ken on May 5, 2014 15:27:51 GMT -6
Why label justices "conservative / liberal". If the swing vote would have voted against prayer, would they then change his category to a liberal justice?
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Post by Flitzerbiest on May 5, 2014 16:14:34 GMT -6
Why label justices "conservative / liberal". If the swing vote would have voted against prayer, would they then change his category to a liberal justice? Those labels were based on the way these justices have voted over time and (to some extent) on who appointed them and why. The 5 were, if I am not mistaken, all Republican nominations and have tended to vote conservatively. Kennedy tends to be more of a swing vote, but is still considered part of the 5-4 conservative majority. That said, this was a profoundly stupid decision. |
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Post by ken on May 5, 2014 16:57:21 GMT -6
Why label justices "conservative / liberal". If the swing vote would have voted against prayer, would they then change his category to a liberal justice? Those labels were based on the way these justices have voted over time and (to some extent) on who appointed them and why. The 5 were, if I am not mistaken, all Republican nominations and have tended to vote conservatively. Kennedy tends to be more of a swing vote, but is still considered part of the 5-4 conservative majority. That said, this was a profoundly stupid decision. OK... I thought it was a good decision--another split vote |
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Post by Jim on May 5, 2014 17:40:24 GMT -6
Why label justices "conservative / liberal". If the swing vote would have voted against prayer, would they then change his category to a liberal justice? Those labels were based on the way these justices have voted over time and (to some extent) on who appointed them and why. The 5 were, if I am not mistaken, all Republican nominations and have tended to vote conservatively. Kennedy tends to be more of a swing vote, but is still considered part of the 5-4 conservative majority. That said, this was a profoundly stupid decision. Hi FB: That's kind of strong. How do you get to a "profoundly stupid" assessment on this one? Jim |
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Post by stevec on May 5, 2014 21:19:42 GMT -6
The decision can't be undone, so we will have to live with it. Win a few, lose once in a while.
I also believe it's a stupid decision, but considering that legislative sessions are all business and people only attend to promote self interests, I'm not going to lose any sleep.
Ken, you got a bone thrown your way, I hope you feel good about it. Your self interests have taken such a beating in recent years, you were due a victory, as insignificant as it may be.
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Post by Jim on May 5, 2014 22:42:31 GMT -6
The decision can't be undone, so we will have to live with it. Win a few, lose once in a while. I also believe it's a stupid decision, but considering that legislative sessions are all business and people only attend to promote self interests, I'm not going to lose any sleep. Ken, you got a bone thrown your way, I hope you feel good about it. Your self interests have taken such a beating in recent years, you were due a victory, as insignificant as it may be. Hi Steve: It's not really much of a bone for Christians. Prayer before the opening of legislative sessions was deemed constitutional by the Burger Court in 1983 in Marsh v. Chambers. I started law school in 1983, so this is coincidentally one of the few "current events" cases I remember discussing in Constitutional Law. I haven't read the briefs or opinions in this new matter, but from the news stories it seems like yesterday's opinion is primarily an endorsement of the law as it has been for the past 30 years. God that makes me feel old... I am sure there are some nuanced differences between yesterday's opinion and the one from 30 years ago (Damn! 30 years ago!) but this reads on the surface like nothing new, nothing changed, nothing profound and almost certainly not anything profoundly stupid. Old Jim |
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Post by Flitzerbiest on May 6, 2014 0:16:23 GMT -6
Those labels were based on the way these justices have voted over time and (to some extent) on who appointed them and why. The 5 were, if I am not mistaken, all Republican nominations and have tended to vote conservatively. Kennedy tends to be more of a swing vote, but is still considered part of the 5-4 conservative majority. That said, this was a profoundly stupid decision. Hi FB: That's kind of strong. How do you get to a "profoundly stupid" assessment on this one? Jim I knew that one would summon you.  First of all, let me acknowledge up front that from a legal standpoint, if you accept the premises which the majority apparently accepted, the case may make some sense from a legal standpoint against which I am not qualified to argue. And, as I understand it (c.f. Scotus blog), the legal argument essentially states that there is a long tradition of this stuff, so it can't be unconstitutional unless something else is going on (e.g. explicit proselytizing, deliberate exclusion of non-Christian prayers, etc). I don't really have much respect for "traditionally, we have..." arguments. I realize that in a discipline which generally accepts precedent, this is not a good argument to make. However, let me make my case from the standpoint of "traditions ought to be questioned for the good of society." Here are the essential elements of my argument: 1. Those who don't find public prayer to be coercive or proselytizing have never been outside the faith tradition in question (note, for example, that all three Jewish Justices dissented). 2. As Justice Kagan points out, the prayers in the case were explicitly Christian, making no attempt to be broadly acceptable in a pluralistically religious culture. 3. Those who support public prayer initiative just to happen to tend to be the same folks who practice proselytizing religion. 4. There is no religious case for the necessity of public prayer. All of the faiths with which I am familiar understand the virtue of communal prayer, but also hold that the person of faith can pray silently. 5. It is impossible to imagine that the defenders of this statue will retain their enthusiasm for legislative/municipal prayer once the shoe is on the other foot. Bring on the imam chaplains, and wait for the howling about cultural and religious encroachment. Anyone who says this is not the case is simply not paying attention. 6. The framers/founders did not write law in or for a religiously pluralistic society. As careful as they were concerning the encroachment of religion on state and vice versa, their understanding was thoroughly anchored in a cultural context where religious pluralism meant nothing more than tolerance for a variety of bickering Christian sects. They simply did not and could not anticipate the current cultural/religious landscape. On this last point, I'll reiterate what I have said elsewhere, i.e. that the Constitution has run its course and ought to be rewritten. Slavish devotion to a document founded in the ideology of an 18th Century agrarian society will tend be at a disadvantage to one informed by some of the unanticipated developments of society. Revise (amend) as long as is reasonable, but eventually the advantages of starting over pile up. Our Constitution: 1. Prescribes for us the bicameral mess that is our Congress. Did it work in a different political climate? Yes. Will it again in the future? Unlikely, IMO. The wicked, pissy, petty-ass genie is out of the bottle and won't be easily stuffed back in. 2. Continues to enshrine hateful anachronisms (e.g. less than personhood for slaves, voting by male landowners). It is all well and good to say that these are undone by subsequent amendment, but at some point it makes more sense to excise the bullshit completely. 3. Combining #1 and #2, the Electoral College. 4. Is grounded in a limited Federalism which has all but been abandoned anyway, and really should be abandoned given the mobility of modern society. Compare the likelihood of a Virginian in 1790 to reside within a 20 mile circle for his entire life as compared to a Virginian born in 1990. My second list is likely another whole discussion, and frankly heresy to you, but boxes are great things outside of which to think. |
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Post by Jim on May 6, 2014 7:52:34 GMT -6
Hi FB: That's kind of strong. How do you get to a "profoundly stupid" assessment on this one? Jim I knew that one would summon you. First of all, let me acknowledge up front that from a legal standpoint, if you accept the premises which the majority apparently accepted, the case may make some sense from a legal standpoint against which I am not qualified to argue. And, as I understand it (c.f. Scotus blog), the legal argument essentially states that there is a long tradition of this stuff, so it can't be unconstitutional unless something else is going on (e.g. explicit proselytizing, deliberate exclusion of non-Christian prayers, etc). I don't really have much respect for "traditionally, we have..." arguments. I realize that in a discipline which generally accepts precedent, this is not a good argument to make. However, let me make my case from the standpoint of "traditions ought to be questioned for the good of society." Here are the essential elements of my argument: 1. Those who don't find public prayer to be coercive or proselytizing have never been outside the faith tradition in question (note, for example, that all three Jewish Justices dissented). 2. As Justice Kagan points out, the prayers in the case were explicitly Christian, making no attempt to be broadly acceptable in a pluralistically religious culture. 3. Those who support public prayer initiative just to happen to tend to be the same folks who practice proselytizing religion. 4. There is no religious case for the necessity of public prayer. All of the faiths with which I am familiar understand the virtue of communal prayer, but also hold that the person of faith can pray silently. 5. It is impossible to imagine that the defenders of this statue will retain their enthusiasm for legislative/municipal prayer once the shoe is on the other foot. Bring on the imam chaplains, and wait for the howling about cultural and religious encroachment. Anyone who says this is not the case is simply not paying attention. 6. The framers/founders did not write law in or for a religiously pluralistic society. As careful as they were concerning the encroachment of religion on state and vice versa, their understanding was thoroughly anchored in a cultural context where religious pluralism meant nothing more than tolerance for a variety of bickering Christian sects. They simply did not and could not anticipate the current cultural/religious landscape. On this last point, I'll reiterate what I have said elsewhere, i.e. that Slavish devotion to a document founded in the ideology of an 18th Century agrarian society will tend be at a disadvantage to one informed by some of the unanticipated developments of society. Revise (amend) as long as is reasonable, but eventually the advantages of starting over pile up. Our Constitution: 1. Prescribes for us the bicameral mess that is our Congress. Did it work in a different political climate? Yes. Will it again in the future? Unlikely, IMO. The wicked, pissy, petty-ass genie is out of the bottle and won't be easily stuffed back in. 2. Continues to enshrine hateful anachronisms (e.g. less than personhood for slaves, voting by male landowners). It is all well and good to say that these are undone by subsequent amendment, but at some point it makes more sense to excise the bullshit completely. 3. Combining #1 and #2, the Electoral College. 4. Is grounded in a limited Federalism which has all but been abandoned anyway, and really should be abandoned given the mobility of modern society. Compare the likelihood of a Virginian in 1790 to reside within a 20 mile circle for his entire life as compared to a Virginian born in 1990. My second list is likely another whole discussion, and frankly heresy to you, but boxes are great things outside of which to think. Likely? FB you've got world-class overstatement and universe-class understatement in the same thread! Some time in the near future (in historical terms) the Constitution will be rewritten. I personally think it is much more likely than not that the rewriting event will be accompanied by a gross domestic or foreign power grab by one group or another so I hope the rewriting is many hundreds of years in the future. Mankind is rather flawed when it comes to governance. Historically, "absolute might makes absolute right" is a far more common organizing concept than the enlightenment principles behind the Constitution. So, I think it is very likely that any "toss and re-write" project is going to be a disaster for all but the chosen few. Some powerful minds have articulated and implemented governmental systems that are not particularly similar to the US Constitution in the years since 1790, and a large portion of humanity has suffered for it. More importantly, I think you might be discounting the evolving nature of the Constitution and US governance way too much. Phrases like "Slavish devotion to a document founded in the ideology of an 18th Century agrarian society will tend be at a disadvantage to one informed by some of the unanticipated developments of society" don't reflect reality. Constitutional governance adapts to changing society miraculously well. This is the entirety of what legislation and Court-based jurisprudence does, it adapts the principles of the Constitution to changing social values and times. Consider the sons of slaves: A. Property at the founding. B. Emancipated in the 19th century. C. Accorded full civil rights (under law) in the 20th century. D. Elected president in the 21st century E. Universally accepted as brothers by all citizens except a few sociopaths, somewhere in the future. No problem under the same Constitution - it is quite adaptable. The things that needed changing are social values, not the foundation document. I can cite a similar progression/evolution on any social/environmental/economic issue you care to mention. Consider the infrastructure of modern life. Semiconductors were not envisioned by the founders of course, but the framework of private commerce and governmental regulation that is embodied within the Constitution worked quite well to foster and support the development of an entirely new economy and social fabric over the last several decades. You write off federalism as a feature of a bygone era, but think about the structure of your own life. Who licenses your profession? Who maintains your community? Who educates your kids? Minnesota, primarily. The lowly states do the heavy lifting but the Feds get all the press.... Bottom line: the Courts and legislatures adjust the US government to meet the needs of a changing society each and every day. The fact that this constant change is backstopped by some very wise constitutional principles is a good thing, a beautiful thing. Sometimes social evolution under the Constitution is messy. Sometimes things are done wrong, for a while. But the outcome is almost assuredly better over time than the forced social evolution that would be caused by any practical scrap and rewrite plan. Embrace the living and ever changing dynamic of Constitutional governance! Jim |
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Post by ken on May 6, 2014 8:22:44 GMT -6
You taken such a beating in recent years, you were due a victory, as insignificant as it may be. When you know how to live, there is no such thing as a beating, Steve. |
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Post by stevec on May 6, 2014 13:19:53 GMT -6
The decision can't be undone, so we will have to live with it. Win a few, lose once in a while. I also believe it's a stupid decision, but considering that legislative sessions are all business and people only attend to promote self interests, I'm not going to lose any sleep. Ken, you got a bone thrown your way, I hope you feel good about it. Your self interests have taken such a beating in recent years, you were due a victory, as insignificant as it may be. Hi Steve: It's not really much of a bone for Christians. Prayer before the opening of legislative sessions was deemed constitutional by the Burger Court in 1983 in Marsh v. Chambers. I started law school in 1983, so this is coincidentally one of the few "current events" cases I remember discussing in Constitutional Law. I haven't read the briefs or opinions in this new matter, but from the news stories it seems like yesterday's opinion is primarily an endorsement of the law as it has been for the past 30 years. God that makes me feel old... I am sure there are some nuanced differences between yesterday's opinion and the one from 30 years ago (Damn! 30 years ago!) but this reads on the surface like nothing new, nothing changed, nothing profound and almost certainly not anything profoundly stupid. Old Jim It's stupid because prayer accomplishes nothing other than alienate people in a diverse culture. I can live with it, but people who attend these legislative sessions and who don't include such terms as Jesus and the holy spirit in their prayers might be put off by such acknowledgements. Screw 'em for believing in the wrong religion is what the decision is saying, I guess. There should have been some directio from the court as to what could and couldn't be said. It was obvious that the Supremes weren't inclined to offer any suggestions in that regard that may have been interpreted as censorship. |
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Post by stevec on May 6, 2014 13:21:19 GMT -6
You taken such a beating in recent years, you were due a victory, as insignificant as it may be. When you know how to live, there is no such thing as a beating, Steve. I know. |
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