Posted on 02/03/2008 4:31:28 AM PST by Tigen
“Swallowing the spin”? You’re perpetrating the spin.
And your spin is a gross misrepresentation of what actually occurred.
Yeah? Show me.
But, fair warning, if you merely cut-n-paste from a spin site, you'll lose this one. They usually take a certain key quote out of context and it doesn't mean what they say on the hit sites. Read the decision.
And again, if a court makes an unconsitutional decision, the executive has a sworn duty to oppose them.
How is it unconstitutional for the court to interpret the law in the absence of legally defined terms? We agree that their interpretation sucks rocks, but, barring legislative override, they were within their powers and duties to administer judgment over vaguely defined terms.
The problem lies in the existing code. When it was written, around 1913, homosexual conduct was illegal, so no one thought that outlawing issuing marriage licenses to them was necessary. Since then, homosexual behavior has become legal, but the marriage code was never updated to bar homosexuals from applying. Right now, it only bars "parties" (note the vagueness of that term) who are close blood relatives, polygamous, underage or certain out-of-staters. None of those are homosexuals. The code does not define marriage anywhere; it just assumes the commonplace 1913 definition was good enough.
Mitt Romney is such a poor candidate and I believe very much a faux conservative. His numerous flip-flops over the years are well documented and many can be viewed on Youtube. He panders to liberals in front of liberal audiences and panders to conservatives in front of conservative audiences.
I want a President who has straight talk, with core, foundational beliefs that are rooted in the Bible and not to be compromised for political expediency.
I won’t vote for McCain or Romney, and it appears Huckabee is schmoozing McCain in hopes for a VP slot. Nobody in this race appeals to me as a true conservative.
I’ll probably vote for Gen. Jerry Curry tomorrow - retired Army general, Vietnam combat vet, strong conservative, and believing Christian. I just can’t vote for the others in a state primary election.
If they thought the law was unconstitutional, they should have overturned it.
But even they didn't have the chutzpah to do that.
As it was, their opinion was just that. An opinion. One that the legislative branch refused to endorse. Unfortunately, Mitt Romney made no such refusal.
Exactly what do you think would have happened to Mitt Romney if he had simply done nothing?
Do you think the legislature would have had the guts to impeach him for following their example of inaction?
I'll have to address your response late tonight...
Alrighty, what do you say "actually occurred"? Post up a blow by blow timeline with some primary documentation. Here is the MA code on marriage, to get you started. Pay particular attention to Chapter 207, Sec. 28, as that is the provision you feel Romney should have ignored.
Here is the full text of the decision, with both majority and dissenting opinions.
I would rephrase it thusly: "It was an unjust, arbitrary reversal of thousands of years of marital jurisprudence," of some such thing.
Let me ask you a more general question, using your language. Is there any order a court can make that the executive would be bound by his oath to defy?
That argument is addressed in the ruling. Read it.
As it was, their opinion was just that. An opinion.
No, it was a legal ruling in a court case. There were majority, concurring, and dissenting opinions filed, but the majority opinion ruled the case. To argue that it was merely an advisory is flat wrong.
One that the legislative branch refused to endorse. Unfortunately, Mitt Romney made no such refusal.
Again, you misunderstand the sequence. The legislature had two courses of action; do nothing and let the court ruling stand for the interpretation of "civil marriage", or pass new legislation barring homosexual marriage as they do consanguineous marriage. They did nothing, so the ruling stands. They endorsed it by not acting to override.
Do you think the legislature would have had the guts to impeach him for following their example of inaction?
Maybe. It depends on if they thought they could get away with the backlash from the citizenry, who supported Mitt in the effort to get an amendment through. That was stopped by legislative manoeuvrings. The legislature was clearly supporting the court here, but the majority of the people were against the decision.
Most likely they would have stayed out of the way and let some homosexual couple make it a Federal 14th A. case, and Romney would have ended up looking like George Wallace standing in the schoolhouse door. And then, we would have had homosexual marriage in every state.
I'll have to address your response late tonight...
Take your time and read the links. Dunno when I'll be back to reply though; got a busy schedule the next couple of nights.
Sure. Now, let me ask you, are there court orders that the executive cannot defy?
The answer is "no," but let me explain what I mean.
There is nothing any court can order that anyone cannot defy, so the executive is not unique in that respect. The only differences are 1) the authority vested in each party and 2) the consequences of defying said order.
Each order has its own set of consequences that is dependent on other magistrates to carry out.
In the case of the executive disagreeing with the judiciary, one must recognize that the court does not hold a superior position over either of the other two branches of government, but there are checks and balances to prevent abuse of power (except when, as we've seen over and over again -- including in this case -- the legislature and/or the executive refuse to stand up to the arbitrary whims of an increasingly brazen judicial oligarchy).
If the legislature believes the executive has not fulfilled the obligation of his office, they can remove him at their discretion. If they do not impeach and remove him, but the people disagree with his decision, they can replace him with someone else according to their laws concerning elections.
However, if he is upholding his oath of office, and the legislature and the people agree, he is safe from reprimand on that account, and the judiciary have not control over the force or the purse, so their decision carries the weight of neither.
The executive can choose to pursue, or not to pursue. A jury of our peers (a political body as well as a judicial one) can choose to convict or exonerate us.
And the legislature can change the law that we protested in our defiance of it, at their discretion.
The problem with this, and it may be insurmountable, is that relying on impeachement to hold an executive to his oath, instead of respect for the divided rule of law, can lead to tyranny of the majority.
I give you the example of Andrew Jackson. Knowing that he had the mob on his side, Jackson defied the Supreme Court’s ruling in favor of the Cherokee, and used the Army to remove them from the Carolinas to Oklahoma, the infamous Trail of Tears.
Okay, let me explain my "sure", then. The executive is justified in ignoring a Court when it is a matter of the Court infringing on the delegated powers of the Executive. For example, the Courts cannot override a pardon. The Courts cannot issue arrest warrants on the Executive (but can on a Legislator, as long as for a crime and not while in or going to a session). The Executive can declare Privilege over subpoenaed documents.
But in this case, the Executive was already issuing licenses under Chapter 207. It would be awfully hard for them to stop issuing them under existing code, and near impossible for them to continue to issue them to heterosexuals, but claim Executive discretion to NOT issue them to homosexuals after the Court and the Legislature agreed they were eligible under existing code. Surely as night follows day, they would have been slapped with an "unequal protection of the law" 14th amendment suit in Federal court the next day.
Tyranny of the majority vs. tyranny of the oligarchy. Face possible death by hanging with a fair trial vs. face certain death by guillotine after a hearing by a kangaroo court. It ain't perfect, but I'll take the former.
There are certain members of the Supreme Court I know would rule in their favor, but I like our chances with this court better than I like them from a liberal state like Mass.
The full faith and credit clause of the Federal Constitution is going to come back to bite us, anyway, because we did not have the stomach to stand up to the court when we had the opportunity.
More like kangaroo court vs lynch mob. The kangaroo court follows the outer form of justice and the mob ignores even that. Neither respect the rule of law.
What is really, really needed is for some legislatures to get some guts and remove some justices from the bench for abuse of power. It is legislative privilege that the courts keep infringing on. The “verdict first, trial after” stuff has to stop, and the only light I can see is appointment of strict constitutionalists. Which is exhibit B against John McCain and his Gang of 14: given his history, I don’t trust him to appoint them.
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