No big disagreements here. A few minor (but persistent) ones and a few clarifications.
The eminent domain decision is huge. Even if the states create a statewise framework that protects the property owners, we have moved from property rights being a natural right recognized by the Constitution to property rights that are the outcome of the political process. As with any decentraliziong trend, this cloud has some silver linings, but the property rights has been dealt an irreparable blow. Similarly, the federal jurusdiction has been extended to people's backyards by the marijuana growers decision, another irreparable injury, this time to federalism.
Sure, Bush can appoint a conservative judge or two, and even get them confirmed. But first, this predicament exposes the juducial branch as an extension of the other two, not as an independent purely intellectual law-interpretive body. And, of course, we have a pattern of judges that were perceived conservative at the time of the nomination promptly drifting leftward once on the bench. The chances of either of these three disastrous decisions to be overturned are virtually nil.
Yes, it would be lawful for a judge to display any symbol, religious or otherwise, from which he draws inspiration, and it would be lawful to have opening prayers of any religion during the court sessions. Likewise he should be able to explicitly use religion in his reasoning. I don't know if the instructions of the jury are matter of procedural law, so I don't know if personal opinion may be injected in those; but if a personal opinion (e.g., "follow your heart") is allowed, then a religiously-based personal opinion (e.g. "be merciful as your Father in heaven is merciful") should also be allowed. Religion is an intrinsic part of what a human being is; it should be an important factor in considering the qualifications of the judge, and it should be his right to exercise his religion or irreligion once he is installed in office. It would be wrong for the judge to arrive to sectarian decisions outside of the law of the land, that is all. For example, a judge may not attach civil guilt to things his religion considers wrong. A judge violates the separation clause when he hands down sentences for violating the Sabbath. He does not break the separation clause when he himself publicly observes the Sabbath.
Stephen Breyer's opinion on the Texas Ten Commandment case is interesting, all the more so because it was the swing opinion that enabled Texas to display its Ten Commandment monument. He reasoned that the monument is OK because there is no evidence that the Eagles (which donated the monument) used any religious language to describe its purpose. Note that he thinks that Ten Commandments is apriori wrong, but if the culprit is discreet enough not to leave any evidence of religious conviction, there is not enough in the law to stop them. It is to him a case of a teller in a bank suddenly buying luxurious houses cars and yachts, -- obviously guuilty of embezzlement, -- who still needs to be caught with his hand in the coffers before he can be jailed. Also note that it is the speech that is sanctioned. If a clergyman spoke at the dedication then that speech would be enough to ban the monument. Conversely, we have to presume that if a school principal posts the Ten Commandments on the wall and slyly explains that the display is there to teach about Roman numerals, then such display would pass the Breyer's test. This is the connection to the freedom of speech, as well as freedom of conscience, being violated by the Supreme Court.
So, the Jews and the Muslim, and of course the Christians, are no longer protected by the First Amendment. The minority religions are protected by the fungible code of political correctness that teaches us to be nice and non-judgemental to one another. This is a weak, and ultimately incorrect principle, and so the protection is illusory. It holds well for the Jews, the pagan, and the atheists. It is breaking down for the Muslim, and it offers no protection to the Catholics or Evangelical Protestants.
One important distinction is between hurting Christianity and hurting the civil society. The article is about the civil society in Europe being on the verge of death, not Christianity. Indeed, the pederast priests did more to hurt Christianity than anty Supreme Court decisions; but it is Supreme Court decisions like these that injure our civil society.
The Constitution has always permitted eminent domain. The recent decision notwithstanding, many states have constitutional restrictions on eminent domain for private purposes. Whether it's a natural right depends on the gainer or loser. The Indians might feel that our property ownership viewed as a natural right epitomizes disengenuousness. Again, as long as the state has a constitutional provision preventing such chicanery, no harm done.
Similarly, the federal jurusdiction has been extended to people's backyards by the marijuana growers decision, another irreparable injury, this time to federalism.
Well that little issue began in 1941 when that farmer decided to plant what he wanted...and lost in the USSC.
Sure, Bush can appoint a conservative judge or two, and even get them confirmed. But first, this predicament exposes the juducial branch as an extension of the other two, not as an independent purely intellectual law-interpretive body.
But isn't that the nature of that particular branch? It has always been that way.
And, of course, we have a pattern of judges that were perceived conservative at the time of the nomination promptly drifting leftward once on the bench. The chances of either of these three disastrous decisions to be overturned are virtually nil.
Well, I think a few of those under consideration would be better bets than most to hopefully fit into the ranks of Scalia and Thomas. But, yes, nothing is a sure thing. A justice is a tremendously powerful position. How about Bork, even at 78?
Likewise he should be able to explicitly use religion in his reasoning. I don't know if the instructions of the jury are matter of procedural law, so I don't know if personal opinion may be injected in those;
I agree up to this point. Once the judge starts using religious reasoning rather than legal reasoning, you begin a trend toward Sharia law. And if the judge were Catholic and used some reasoning that was based on teachings of the Church but had little to do with secular law, where does that leave us? It is a tremendously slippery slope that is very similar to the reasoning of those who countenance jury nullification. It begins a process of legal chaos, much more than we have today.
Religion is an intrinsic part of what a human being is; it should be an important factor in considering the qualifications of the judge, and it should be his right to exercise his religion or irreligion once he is installed in office.
His oath of office would prevent such exercise as a substitute for or even as an embellishment for his interpretation of the law, and his conduct of legal proceedings. Justice is a difficult thing to achieve, but it must be attempted within the confines of the established secular legal system.
For example, a judge may not attach civil guilt to things his religion considers wrong. A judge violates the separation clause when he hands down sentences for violating the Sabbath. He does not break the separation clause when he himself publicly observes the Sabbath.
As long as we clearly separate those two concepts in that manner, then we are in agreement.
So, the Jews and the Muslim, and of course the Christians, are no longer protected by the First Amendment. The minority religions are protected by the fungible code of political correctness that teaches us to be nice and non-judgemental to one another. This is a weak, and ultimately incorrect principle, and so the protection is illusory. It holds well for the Jews, the pagan, and the atheists. It is breaking down for the Muslim, and it offers no protection to the Catholics or Evangelical Protestants.
I cannot follow this logic. While Breyer's logic leaves a little to be desired, I think I understand the difference they were going after. Religion is clearly an important part of our history and our culture. As such, it has a right to public display. But if a public official is simply trying to use a public forum for putting forth a religious philosophy of any kind, then it is prohibited. I don't feel that my ability to seek out and practice any religion I choose has been diminished in any way, which is the essence of the First Amendment.
One important distinction is between hurting Christianity and hurting the civil society. The article is about the civil society in Europe being on the verge of death, not Christianity. Indeed, the pederast priests did more to hurt Christianity than anty Supreme Court decisions; but it is Supreme Court decisions like these that injure our civil society.
Our discussion has taken a number of interesting turns as we try to understand the current state of a healthy or unhealthy Europe. But just as your argument that Europe is where it is because it has turned against Christianity is without evidence, so too the statement that the USSC decision on the Ten Commandments has hurt society is not replete with evidence. To the contrary, the decision allowing the Ten Commandments in Texas seems to clear many issues of concern to Americans and certainly pops the balloon of that idiot from California that wants all references to God removed from all public property. I'm optimistic, and even more so with a good conservative replacement for O'Connor.