Posted on 03/15/2005 10:20:51 AM PST by tahiti
I am listening to the Rush Limbaugh show at this very moment.
I am having quite a bit of difficulty reconciling Rush Limbaugh's remarks about judges imposing their morality and/or personal preferences on the rest of the citizenry as result of their constitutional decisions.
Yes, there are decisions that have been made based on a personal preference of a judge.
Most recently the Supreme Court decision to prohibit convicted death row felons under 18 years of age from being executed.
Original meaning of Amendment VIII, "...nor cruel and unusual punishments inflicted," could never be interpreted to prohibit convicted felon under the age of 18 from executed without inserting an arbitrary personal preference gleened from what the "rest of the world" does.
However, Rush Limbaugh is advocating a tyranny of the majority, in a sense, through his advocation of enacting laws passed by a poplulist legislature, which would be nothing less than a consensus of morality and/or personal preferences of a group of people versus the morality or personal preferences of single judge.
The constitutions, either federal or state, are meant to limit government power and protect the individual rights of all citizens.
For example, Mr. Limbaugh, your current legal battle with the state of Florida over your use of pain killing drugs may be analyze from a constitutional perspective of original meaning.
What individual right is more fundamental than an individual, free citizen, deciding how he or she shall treat their pain?
How and where does any government entity, constitutionally exert their power to prohibit an individual from determing how much pain killer they need to consume to satisfy the discomfort of their personal pain?
And in fact, the federal constitution, the federal Bill of Rights, not the Bill of Privileges, guarantees that right to make such a decision.
Amendment IX
"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others (rights) retained by the people."
Again, the constitution is meant to "limit" the power of government and the tyranny of the majority from imposing the majorities morality and/or personal preferences on an individual.
Is it not the basis of liberty, the basis of acting like a free citizen, living in a free country, to make the individual decision on what and how much an individual shall consume of a chemical or food for medicinal reasons or just plain pleasure?
Is that not a right "retained by the people?"
Without some type of "judicial" review of tyrannical laws that violate the constitution(s), how do we prevent the trampling of guaranteed rights by the poplulist, personal preference, morality driven majority? (bear arms, search and seizures, speech, religion, etc., for example)
Those citizens who are of the Christian faith, what protection of your religiion will you have if and when Muslims are the majority in the U.S., if their is no judicial review to help protect your right to a Christian religion and Muslism being imposed in your life?
The proper and constitutional way for the majority to have their will enacted is to "amend" the constitution, not to pressure legislators to enact unconstitutional laws.
When laws can deny and disparage rights, the constitutional will be rendered useless and the constitution will mean only what the majority wants, stated through their legislators and enacted laws.
Enacted laws are below the covenants of constitution(s)in the hierchacy of the rule of law, if not then there is no need for a constitution.
this is not to say that I think the courts are always right, btw.
The amendment process.
Yes, in a positive way. Rush has the "resources" to create the proper constitutional crisis to help all lover's of liberty exert their rights "retained by the people" promised in Amendment IX.
"The Federal Constitution IS supposed to be one of "limited" scope, but the State Constitutions are NOT."
Unfortunately, Amendment X was rendered superfluous by our ancestors who, properly by the way, ratified Amendment XIV, Section 1, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"
"One judge, one who is free of worrying about accountability,"
Judges can be impeached, very difficult yes, or the "people" can amend either a state or the federal constitution to overule, so to speak, a rogue judge's decision.
"What conservatives want are judges that confer on "original intent"
Conservatives should want to have judges that will make decisions based on "original meaning" of the words in the Constitution, not the "original intent." There is a difference. (See Prof. Randy Barnett's scholarly work on this distinction)
The "intent" was not constitutionalized, so to speak, because there were so many conflicting "intents" by the participants of the Constitutional convention. For example, the federalist and the anti-federalist.
The words in the Constitution have "original meaning," such as in Amendment IX, when words such as "SHALL NOT" or "DENY OR DISPARAGE" are used. Same with Amendment I, "NO LAW," Amendment II "SHALL NOT," again Amendment IX "RETAINED BY THE PEOPLE."
"Activist judges are amending the Constitution by judicial fiat!"
I would say "activist judges" are ignoring the Constitution, not amending it.
"What is your pleasure?"
My "pleasure" is liberty.
Amendment IX
"The enumeration in the Constitution of certain rights, SHALL NOT be construed to DENY OR DISPARAGE others (rights) RETAINED BY THE PEOPLE."
I am an "original meaning" constitutionalist. The words used in the Constitution have meaning; absolute meaning.
Words and phrases such has "shall not...deny...disparage" are unambiguous.
Rush and I are fellow Missourians, days apart in age.
I have no problem with Rush Limbaugh. I just think he is wasting a wonderful opportunity to create a constitutional crisis, for the defense of liberty, for not taking on his drug legal problem with the Constitution as his defense.
He is very rich, which is great, I have contributed to his wealth by listening to his show and buying the products that are advertised on his program.
But just as he reads the letter from his dad every year about how our founding fathers pledge their "wealth and sacred honor" towards the establishment of libery in north america, he now has the same opportunity to go down in history as one who not only talked the talk but walked the walk.
Thank God, this is a slow process.
Too many people in this country wish to deny and disparage rights with the slightest provocation.
Example's abound:
business regulations that violate Amendment V;
anti-smoking, anti-obesity, and seat belt laws that violate Amendment IX;
anti-gun and anti-carry laws that violate Amendent II;
removal of 10 Commandments that violate Amendment I;
campaign fiance laws that violate Amendment I;
search and seizure laws at airports that violate Amendment IV;
prescription drug laws that violate Amendment IX;
states issuing driver licenses to illegal immigrants and Congress not "repelling" the invasion, Art I, Sec 8, Cl 15.
Ditto here! I listened to the entire thing and he was dead nuts on. In the "legal 'industry' " judges and lawyers "wash each others' backs" by preserving this BS notion of "discretion" which is really more aptly termed "being able to impose their own personal bents and brands of morality as they see fit APART from what the laws say!"
Judges are to do NOTHING other than see what the law says, reconcile that with what the "matter at hand" is, and see if it holds sway. Huge levels of intelligence are really not needed to be a judge, simply an ability to read and comprehend basic English.
What judges are doing, especially at the highest levels, are ignoring the LAWS and making decisions according to their own whims and moralities whether or not they hold sway with Constitutional underpinnings and the laws as they are on the books.
It's a crock of crap and is ruining this country! At some point, very soon, there will be calls for a "revamping" of our Constitution. The real battle then begins. Without a Judeo-Christian backdrop, i.e. a higher morality, one higher than man, such a basis for any "constitution" is fruitless since there is NOTHING that "all can agree upon." It will be "each to his own" and "everything goes."
All because judges can't simply do what they're supposed to do!
"Elected" legislators, gave their "advise and consent" at the federal level.
Usually at the state and local level, the judges are "elected."
When your constitutionally protected rights are violated by "majority rule," where do go for redress? Who will hear your grievance?
Yes, too many judges to not interpret either state or the federal constitution from an "original meaning, presumption of liberty" point of view.
I suggest to you that judges, being human, make their decisions based upon being accepted in their community; by their friends and family, not on a presumption of liberty because it is too controversial, just as my post as prove to be.
I didn't know Mr. Levin had a radio show.
I live in Missouri, WABC is bit far away.
How is advocating the supremacy of a constitution over laws and statutes, what we in the U.S. commonly call the "rule of law," be "advocating...anarchy?"
Presumably, you mean a "presidential" executive order.
With that being the case, a "presidential" executive order only has jurisdiction on federal property.
For example, President Clinton (oh, does it hurt to say that) used the presidential executive order to prevent oil drilling on federal land within the State of Utah.
Not very different than the Democratic underground I imagine."
Well said. Brilliant.
All these subsequent "reinterpretations" are usurptions of power by the judiciary rather than changing the constitution through the only proper way--the amendment proces.
Use of the Unconstitutional Option should be calibrated to the constitution's original meaning or subsequent amendments. Otherwise nothing should be ruled "unconstitutional" that is, out of bounds by free people's government to enact.
The author of this article on Rush engages in the tactic of misinterpretation. Rush's proper meaning was totally sound--after all, he was only enunciating Scalia's speech.
Agreed.
With that being said, is not Amendment IX part of the "Bill of Rights",?
"The enumeration in the Constitution of certian rights, shall not be construed to deny or disparage others (rights) retained by the people."
Does your wife and/or girl friend take a birth control pill?
Prior to 1964, in the State of Connecticutt, she could not legally do that.
Isn't taking a birth control a right "retained by the people?"
Did it not take a constitutional amendment to prohibit the consumption of alcohol during the 1920's?
Did you ever wonder why it did? What has changed? Why does it not take a constitutional amendment now to prohibit the free people of the U.S. from consuming the food and/or chemicals of their choice, when they want to and in the amount that they want to?
Why are you ignoring the "constitutional" part of your remark?
The constitution is the supreme document that checks "majority rule."
Why do you think that the Congress has only 17 enumerated powers?
Why do you think that the Bill of Rights is generously sprinkled with phrases such as "shall not,...no law...without...deny...disparage...retained?"
The founding fathers abhored majority rule because history had shown that it self-destructs.
Actually it is not a bit far away at all. It is at your fingertips on your trusty computer's ability to handle live streaming: http://www.wabcradio.com/listenlive.asp
This remark, implies to me, that immorality, which is the product sold by religion, is slavery.
No argument there.
But why does religion need the imprimatur of a secular government to bolster it's righteousness?
Cannot religious morality stand on it's own accord?
The "cost" of immorality affecting the taxpayor is only because the misguided taxpayor has allowed their legislator to enact laws that subsidize that immorality with taxpayor money.
Revoke the subsidy, let the negative consequences of a person's immoratlity be born by that person and that person will either repent their sins and live or literally die.
That is how free people act in a free country.
Now, as a Californian I might have disagreed with such a decision of the legislature here but at least it would been the result of debate and reasoned argument and if the people felt gay marriage should now become the law of California, that means the debate's over. The majority has changed its mind. That's the way things work in a free society through the arena of ideas. But that's not how our friends on the Left do things; they can't take the time to educate people, to convince them we need to look at marriage in a new way, and we need to extend fairness to people who haven't previously been able to get married. None of that for them. Instead, they found a judge who agreed with them and short-circuited the democratic process. It may make for good policy but its bad politics.
I'll tell you what Judge Richard Kramer's decision, if upheld on appeal means: it will destroy what's left of the Democratic Party in Red States. Its going to lead to more constitutional amendments to ban same sex marriage across the country. Even in Blue State California, it will probably lead to a state constitutional amendment to reinstate the ban and that will set back the efforts of gay activists at least a generation. All because they couldn't take their argument to the people. The Left, my friends, is not reconciled to the view they're a minority party in this country. They're drunk on power. And the courts are the last way they have of imposing their power on the rest of the country.
Now imagine what happens if they lose the power to get judges who agree with imposing their policy preferences from the bench on there. It means the lose their reason to keep on existing. Liberals don't know how to argue for their beliefs and they haven't had a new idea in nearly a century. What's left of the Democratic Party will probably go the way of the Whigs. So its not tyranny of the majority the Left fears in this country as much as its the loss of their privileged minority power position through the judiciary. And if Marbury V Madison were overturned, it wouldn't lead to the loss of our rights or to the disintegration of our constitutional system of checks and balances.
It would to the contrary, result in the restoration of the power of the people and their elected representatives to have their votes matter. If judges can't declare laws they don't like unconstitutional, it simply means those who lose in the courts will have go to the people to ask to get the laws changed. A general respect for the law will in turn engender respect for the views of the minority and a greater appreciation of the need to protect minority rights. That's not happening now because the majority is not safe to see its values preserved for the generations.
Our Constitution rests on the assumption that the interplay of differing interests in society through our elected representatives, will arrive in a harmonious conclusion. We're not going to get that from judges who act as mini-dictators. The more the will of the people is arbitrarily set aside, the more the rights we do have become endangered. And when that happens, I'm not sure even judges can then protect them. That ought to grab the attention of liberals. The point is tradition protects people out of power as much as it advances the interests of people in power. But if you discard tradition to the wind, you destroy the basis of republican government.
Nowhere is the ideal of republican government better embodied than through the law, which in turn transmits to future generations the values of society. And to keep it safe we have to recognize that while a majority is not always right, there's a good reason it has for making the judgment it does. And people on the other side can and do have the power to change it - there's a right way to change it and a wrong way to change it. Its the wrong way - going to judges whenever you're not happy with society's rules that's tearing this country and freedom apart. Its the right way - making your argument in the arena of ideas and convincing the people and their elected representatives we need a change that will make this country a better place.
This has been something of an essay on my part. But I guess if I had to distill it to a bottom line it would be: trust the people to do the right thing. That's when you get right down to it what makes America a great country. The Left doesn't trust the people - conservatives do. And now that we're in the majority we have nothing to fear from them. We'll keep making our case to them and presenting ideas and winning elections. The Left will loathe them and keep asking their favorite judges to impose their agenda for them even as they keep losing at the ballot box.
In this country, the problem we have had has never been with the American character. Its has always been with the elites telling Americans to hell with your character - we'll do what we decide is best. No wonder there's a backlash going on in this country. To the Left and people on here who wonder if its a backlash against freedom and the rule of law; they can rest easy. Its nothing of the sort. To the contrary. The backlash is about trusting decency and justice and a sense of what's right. About what's at the heart of the American character.
Fair play, fair treatment, and respect for the underdog. We're bringing those great things back even in American life as the Left shows its contempt of them. We're bringing back trust the people. We're trying to bring the law back to reflect that spirit. My friends, the Left is losing and will continue to lose. What liberals want in the final analysis, is irrelevant as long as the American people are on our side. And one-man demolition derbies like Judge Kramer will continue to ensure that when all is said and done, we are on top in the arena of ideas and across the broad breadth of the Union. Which will swell it again as it always does with a call to heed "the better angels of our nature."
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
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