Don't disagree with respect to those areas mentioned except for abortion. A lower court judge can of course rule "against" abortion in unsettled areas within states such as age of consent, parental or spousal involvement, partial birth, waiting periods, etc. But he cannot rule against abortion per se. If he cannot rule with the Constitution (as it has been interpreted by the USSC), he should simply recuse himself from the case. A judge (or any official for that matter) should never be required to set aside his own moral code, but he should not put himself in a position where that code conflicts directly with the responsibilities he has undertaken and taken an oath to uphold.
It is also possible that on occasion some judges would take the moral guidance of their religion to areas where political law should rightly prevail. But, as I mentioned earlier, if they do so and contribute to an intolerable amount of anarchy, then they would be violating the moral law as well. Since typically the decision to follow one's conscience is a career-ending one, I would not worry that the legal system would get destabilized to the point that more harm than good is done.
What I am saying is that in almost all cases, he has the "wiggle room" to stay out of the fray. If he instead chooses to enter the fray, then he has violated his oath of office and should be disciplined or removed from office. No good is done when a judge or official defies the Constitution or laws emanating therefrom to comply with some moral code that may or may not be shared with others who come under the protection of our Constitution. It's not enough to measure the amount of harm done, but simply to recognize that harm is in fact done.
You seem to think that it is possible to use the idiosynchratic American model of constitutional law and two-tiered judgeships, those that deal with constitutionality and those who deal with deciding the actual cases, to create a society of computer programs that interpret the Constitution with robotic precision and arrive each time at morally valid decisions.
That might be ideal, but of course not feasible. We are not discussing slight variations. We are discussing whether a judge has the right to defy the Constitution if he sees a moral imperative to do so. It is insufficient merely to delineate those areas where you personally would agree, such as abortion, gay marriage, etc. Because once you do, then you also permit those with moral codes that differ from yours to do the same. That is my argument, and it is far from a computer model. It opens up almost any area for judicial activism, including education, welfare, marriage and divorce, environment, and on and on. All of those areas involve personal as well as public moral interests. The public interests may clearly conflict with personal interests. Also many of those are issues of interest to the left. Nor can you write them off so easily by attaching a liberal label to them. They absolutely involve moral issues! Judicial activism involves one of two courses of action. The first is to read something into the Constitution that was neither intended nor implied. The second is to create legislation to right a wrong. Neither is the responsibility nor power of the judiciary. Whether it be for Christ or Allah, it is wrong.
You may even, post-factum, backfill the necessary constitutional scholarship to "demonstrate" that if only the judges followed the Constitution, Dread Scott would not have been law, or Roe v. Wade would not have been law.
I would likely make the case that prior to the 13th and 14th Amendments, Dred Scott made some sense, that the Constitution did not distinguish between a slave and other property. But I will at the same time argue that Roe was a completely political USSC decision and was constructed out of whole cloth, to create a right that was neither included nor implied in the Constitution.
But the empirical historical fact remains that it took courageous judges' violation of their oath of office to take sides with the moral law and not with the constitutional law as they at the time understood it. It will take similar courage from a future Supreme Court nominee to overturn Roe v. Wade, a courage I have not seen so far in this empty suit #2 they've been dragging along lately.
With respect to Scott, this was a logical if immoral decision, and I suspect took little courage. As for Roe, I'm not sure about courage, but it took a lot of audacity for sure. To find a woman's right to privacy somehow secretly embedded within the Constitution while ignoring the possibility of the unborn child being a "person" spoke only for the political imperatives of the time. Remember the USSC is beholding only to the Constitution, while lower courts are bound by previous decisions as well as the Constitution. The idea of expanding the interpretation of the Constitution to encompass ideas never contemplated by the founding fathers was the brainchild of the Roosevelt court that he virtually created just for that purpose. You'd best hope your empty suit #2 understands that and helps to move the court back where it belongs, even if he fails your test of Christianity first, Constitution second.
I think we have strayed far off the topic of the cultural climate of Europe. How familiar are you with Spooner's essays on jury nullification? I thinkI'll post something from him later.
Well if you're referring to the same Spooner who felt that jury nullification was an important part of the legal process because it permitted justice, then I've not read his essays but know of him. I was on a thread a year or so ago involving jury instructions given in California which would basically permit jury nullification. I don't recall the issue, but suspect it was a Christian. I took the position that he should have been immediately fired, but it was not the most popular sentiment. There was one Freeper who was a Libertarian. His position was that in no case would he ever as a juror find guilty anyone charged with weapons, drugs or tax evasion crimes. Another expressed sympathy for those charged with murder and property destruction involving abortion clinics and doctors.
One state, Indiana actually permits juries to look at the law itself when judging a case. Of course, at the time that was put into the Indiana constitution, I believe the state house was under the direct control of the KKK.
Obviously, you can guess my position on jury nullification. No true conservative could possibly approve of its use.
The Spooner in question is Lysander Spooner (not Benjamin Spooner who invented eponymous wordplay). He proved to my satisfaction that jury nullification is a cornerstone of our past freedoms. Naturally, the state used a lot of power to obfuscate the issue.
For more than six hundred years-that is, since Magna Carta, in 1215--there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their light, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such law.Unless such be the right and duty of jurors, it is plain that, instead of juries being a "palladium of liberty"-a barrier against the tyranny and oppression of the government-they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
You contradict yourself -- to deny jury nullification is to compel the juror to set aside his moral code. (I am assuming that you are not taking the absurd position that individual moral judgment is a prerogative of "officials" alone, and denied to the common herd.)