How to Reignite the Culture Wars (Has SCOTUS gone TOO Far?)

New York Times Magazine ^ | 7 September 2003 | JEFFREY ROSEN

[shrinkermd]

A more fair analysis than usual from the NYT. IMHO the problem with SCOTUS is they unconsciously believe they are philosopher kings in a shining city on a hill. They are quire prepared to breech their oath of office as long as they actualize whatever the leftist wisdom of the day is. Contrary to their claims SCOTUS continuously undermines self-government and democratic procedures. They are quite ready to rely on even foreign laws to govern us without any apology or hesitation.

[Noachian]

A more fair analysis than usual from the NYT. IMHO the problem with SCOTUS is they unconsciously believe they are philosopher kings in a shining city on a hill. They are quire prepared to breech their oath of office as long as they actualize whatever the leftist wisdom of the day is. Contrary to their claims SCOTUS continuously undermines self-government and democratic procedures. They are quite ready to rely on even foreign laws to govern us without any apology or hesitation.

That's because they're an unelected body, and don't care what the people think. Had the Founding Fathers foreseen the abuses of SCOTUS power those Justices would be accountable to the electorate today. That's a mistake that will be hard to correct even though the people have the constitutional power to change their government via amendments.

There are some who will go down with the ship in their zeal to protect the Founder's intent to have a Court free from the influence of the people, but it is these same peope who yell the loudest about the excesses and abuses of the High Court. The fact remains that the High Court is out of control, and will, in pursuit of its personal agenda, degrade the words of the Constitution and misrepresent the intentions of the Founders. Only if the fate of the today's Justices are in the hands of today's electorate can the people be in control of their nation.

It is wise to remember that the Supreme Court can do nothing without the acquiescence of Congress. Congress has the authority to regulate the Court, but never uses it except to stop Conservative Justices from being appointed to the Federal bench. In all the rulings that have affected American society the Judiciary Committees have never held investigations into the High Courts reasons, rational, or precedents. In this respect the activism we see from the High Court is the direct result of inaction by liberal members of the Judiciary Committees.

The Court is removed from any form of control by the people, so it's to Congress the people must turn if they are to have any influence over the High Court. There will be more abuses of constitutional law by the High Court since their congressional master has dropped their leash and let them run free among the people's rights.

Stop the congressional liberals that allow the Court to run amuck, and you stop the Court from further abuses and usurpation of power. Amend the Constitution and you take power away from the liberal Congress and give it directly to the people.

[Zack Nguyen]

In his majority opinion, Justice Harry Blackmun said the Constitution protected the right to choose first trimester abortions, but he failed to specify where in the text or history of the Constitution this right was located.

Because Justice Blackman was not interested in law. He was interested in advancing the secular liberal agenda.

[MichaelWilliams18]

First of all, before I go any further, I want to say that I support a Constitutional Amendment to protect traditional marriage, but considering the difficulty in amending the United Stats Constitution, I want to present another possibility in defending traditional marriage from activist judges.

Let's say that the homosexual activists get the NJ or MA Supreme court to rule in favor of homosexual marriage. Let's say that the activists then proceed to go to federal court to force other states to accept their false marriage. What follows is my analysis that suggests it is not necessarily a done deal for homosexuals to use the "full faith and credit" clause to force marriage on the other states.

First of all, and perhaps the most important, (the liberals in the media don't want you to know this), The Supreme court did not rule in Lawrence V Texas that there is a "Fundamental Right" to homosexual sodomy. In fact this is one portion of the Bowers V Hardwick ruling that was left intact.

In order for something to be found a "Fundamental Right" and therefore be subject to a much higher standard of review (Strict Scrutiny) it must be "Some principle so rooted in the traditions and conscience of the people as to be ranked as fundamental." Snyder V Commonwealth of Massachusetts, 291 US 97 (1934).

This standard was upheld more recently in Reno V Flores 507 US 292 (1993) where again the court ruled that a Fundamental Right must be considered "So rooted in the traditions and conscience of our people as to be ranked as fundamental."

Most Recently in Washington v. Glucksberg. 521 US 702 (1997) "The Court's established method of substantive due process analysis has two primary features: First, the Court has regularly observed that the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition. E.g., Moore v. East Cleveland, 431 U.S. 494, 503 (plurality opinion). Second, the Court has required a "careful description" of the asserted fundamental liberty interest. E.g., Reno v. Flores, 507 U.S. 292, 302. The Ninth Circuit's and respondents' various descriptions of the interest here at stake--e.g., a right to "determin[e] the time and manner of one's death," the "right to die," a "liberty to choose how to die," a right to "control of one's final days," "the right to choose a humane, dignified death," and "the liberty to shape death"--run counter to that second requirement. Since the Washington statute prohibits "aid[ing] another person to attempt suicide," the question before the Court is more properly characterized as whether the "liberty" specially protected by the Clause includes a right to commit suicide which itself includes a right to assistance in doing so. This asserted right has no place in our Nation's traditions, given the country's consistent, almost universal, and continuing rejection of the right, even for terminally ill, mentally competent adults. To hold for respondents, the Court would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. Respondents' contention that the asserted interest is consistent with this Court's substantive due process cases, if not with this Nation's history and practice, is unpersuasive. The constitutionally protected right to refuse lifesaving hydration and nutrition that was discussed in Cruzan, supra, at 279, was not simply deduced from abstract concepts of personal autonomy, but was instead grounded in the Nation's history and traditions, given the common law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment. And although Casey recognized that many of the rights and liberties protected by the Due Process Clause sound in personal autonomy, 505 U. S., at 852, it does not follow that any and all important, intimate, and personal decisions are so protected, see San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33-34. Casey did not suggest otherwise. Pp. 15-24."

The homosexual activists cannot argue that Homosexual marriage is deeply rooted in the traditions and conscience of the American people.

In fact even in cases where the Homosexual Activists have won a right to marriage under a state constitution, those same activists courts could not rule that Homosexual Marriage was not a fundamental right. In Baehr V Lewin (The marriage case before the Hawaii Supreme Court.) The majority found: "we do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions. Neither do we believe that a right to same-sex marriage is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed. Accordingly, we hold that the applicant couples do not have a fundamental constitutional right to same-sex marriage arising out of the right to privacy or otherwise."

So with a Fundamental Right argument dead in the water, the Homosexual Activists must retreat the the full faith and credit clause option.

I believe that here as well the Homosexual Activists do not have a leg to stand on. The Full Faith and Credit clause of the Constitution does not mandate that one state accept the laws of another, in addition it specifically gives Congress the Authority to provide for implementation of the Clause. (Congress has done so with the 1996 Defense of Marriage Act.)

The Supreme Court has ruled in two cases on the extent of the Full Faith and Credit Clause. The first Pacific Employers Ins Co V Industrial Accident Commission of California 306 US 493 (1939) The Court ruled : "we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events."

The court restated this principle in Sun Oil CO V Wortman 486 US 717 (1988) where it stated "The Full Faith and Credit Clause does not compel a state to substitute the statutes of another state for its own statutes dealing with a subject matter concerning which it is competent to legislate."

Now please keep in mind, these principles do not stop individual state supreme courts from using judicial activism to find a right to homosexual marriage in a specific state. They can only be used to stop activists winning in one state, then forceing other states to accept those false marriages.

Individual State Constitutional Amendments on Marriage will go much further than state Statutes in defending marriage in individual states from activist state courts.

Better yet would be a United States Constitutional Amendment to defend marriage once and for all, but short of that, we as conservatives, do have other options.

[kuma]

Impeach them. That is our power over them if only our elected representatives had the guts.

[kuma]

That sounds cohesive. It would stop the complaints of the Federalists as well ^_^. The whole point with me and the Federal Marriage Ammendment is to stop the activism within the U.S. Supreme Court. Do you think they would take individual states Constitutional Ammendments to the Supremes to have them outlaw them as being against the U.S. Constitution?

[azhenfud]

SCOTUS = Axis of Evil

[Noachian]

That is our power over them if only our elected representatives had the guts.

It's not a matter of guts. It's a matter of agenda. Congressional Liberals love the Court, so why change it?

[SauronOfMordor]

That's because they're an unelected body, and don't care what the people think. Had the Founding Fathers foreseen the abuses of SCOTUS power those Justices would be accountable to the electorate today. That's a mistake that will be hard to correct even though the people have the constitutional power to change their government via amendments.

It the time of the Founders, the Supreme Court had little actual power, which President Andrew Jackson demonstrated to the Supremes when they issued Worcester v. Georgia (1832)

In that decision, the Supremes held that Georgia had no right to evict the Cherokees from their land in Georgia. President Jackson then issued his famous response: "[Chief Justice] Marshall has made his decision -- now let him enforce it". The Indians were moved in defiance of the Supremes

The reason Jackson could do this is that he had the ability to immediately fire any executive branch employee who did not do as he was told by Jackson. This meant that in a conflict between Jackson and the Supremes, Jackson won -- the Supremes did not command any bayonets. The Civil Service acts later changed this balance of power in favor of the courts.

That Supreme Court decision held that

[MichaelWilliams18]

Most likely the activists are going to sue no matter what. Nebraska has the toughest Constitutional Amendment in the nation defending marriage. It says: Only marriage between a man and a woman shall be valid or recognized in Nebraska . The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

The activists have already taken Nebraska to Federal Court over the Amendment.

What individual State Consitutional Amendment do however, is tie the hands of Individual State courts from becoming activists and throwing out statutes that defend marriage.

[shrinkermd]

"Better yet would be a United States Constitutional Amendment to defend marriage once and for all, but short of that, we as conservatives, do have other options.

Thank you. An awesome legal and political analysis. One thing I think others forget to mention is why some homosexuals want marriage.

Anyone who has dealt with troubled and troubling individuals routinely experiences the resentment and denial of pathology of any kind. For homosexuals this is frequently (but not always manifested) in a predominantly unconscious desire to prove they are "normal." Indeed, if you want a heated discussion just imply that biologically and statistically homosexuality is not "normal."

I believe this whole mess is being accentuated and dragged out by the federal judiciary since it is clear what is being asked is not to give homosexuals a particular right but to give them an unequivocal proof that their homosexuality is "normal."

[Noachian]

The Civil Service acts later changed this balance of power in favor of the courts.

And as the years went by the High Court has accumulated more power until today they have become a law making body that some say surpasses both other branches of government. They're unelected so they are unaccountable to the people, and have carte blanche to do with the Constitution as they please. This is despotism.

The fact that the liberals in Congress excuse the activism on the Court instead of taking them to task as they have the power to do means that the people have no defense against a rogue Court. Without the Congress the people cannot stop the Courts extremes. Neither the Senate nor the Executive branch will act against the Court, so the people are now subject to a despotic Court. This is not what the Founders intended.

[mvpel]

This reminds me of Ann Coulter's observations in "Slander" of the left's use of the "religious right" as a Orwellian-style "Goldberg," defeated and then resurrected every time an opponent is needed. Must be resurrection time now.

[EdReform]

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[First Amendment]

is clear what is being asked is not to give homosexuals a particular right but to give them an unequivocal proof that their homosexuality is "normal."

And the corollary is that homosexuals also want us to "believe" and even "testify" that same sex acts, in addition to being "normal" are also RIGHT and morally proper. This is the foundation of hate speech laws, sensitivity training, Freshman Orientation weeks including "gay" training, on and on ad infinitum.

If they continue to hold sway legally and politically, we will not be allowed to think or state that same sex acts are abnormal, unhealthy, or wrong.

But even if the homoexual activists succeed, the voice in their hearts will still be there, telling them: "What you are doing is wrong, unhealthy, and abnormal."

[Noachian]

"My basic point is, the judiciary is the only branch of government that is not directly liable to the masses; furthermore, this is vital to the balance of power.

There's no way you and I are going to agree on the role of the Judiciary in today's government. Let me say that this isn't the 1700's, and the intended role of the Judiciary at that time wasn't as a law making body, nor did it usurp power from the Legislature.

Times have changed and with it the role of the Judiciary. Any cursory inspection of the Founders writing will show they never meant for the High Court to be unaccountable to the people, or to be a law making body superior to the Congress. The People once had access to the Judiciary via their representatives in Congress. That is no longer the case. No Judicial committee from either the House or Senate has held hearings on, or investigations into, the Supreme Courts judicial activism, making the Congress equally liable for the Courts excesses. There is no action that cn be taken against the Court aside from Congress, and with the "shield" of Congress taken from them the people are naked before the Court and without recourse.

The judiciary's purpose is to prevent "tyranny of the majority,"

You're forgetting the tyranny of the Judiciary. An old, but true, maxim: "Power corrupts; Absolute power corrupts absolutely." Common sense must tell you that any politician who has no accountablity, can make law with impunity, and is unremovable from office will in time abuse the trust, and authority, given to him. This is human nature. A review of the High Court's past rulings reveals it to be exceeding its Constitutional authority, and no longer does its vow to protect and defend the Constitution ring true.

What you're trying to defend is pure Republicanism as the Founders saw it and that's admirable, but leaving the High Court to wreak further havoc on this nation would be foolheardy. The Founders gave the People the means to change their government should one branch amass too much power. They thought it would be the Executive branch, not the Judiciary, but they put controls on the Judiciary as well which the Congress doesn't use.

As I said in the opening of this post: "There's no way you and I are going to agree..." But, consider this: without changing any Judicial structure from the way it is now, Congress can at any time of its choosing hold hearings to investigate the rational, precedents, and logic behind recent High Court decisions affecting American society. A perfect example would be the expected upcoming case involving the Alabama Ten Commandments that's winding its way slowly toward the Supreme Court. Because that case will involve basic First Amendment law the Congressional Judiciary Committees should be gearing up for hearings on the outcome no matter which way it goes.

But, the Congress is doing nothing. There will be no hearings, although Congress is mandated to regulate the Judiciary. There will be no investigations either.

If the "majority" very strongly objects to a decision by the courts, there are then recourses they can take to 1) amend constitutions and 2) impeach judges.

It takes Congress to do that, and as I've said Congress will do nothing .

Since the objection to Lawrence by the masses doesn't approach unanimity, congress won't use it as a reason to amend the constitution ...

How does anyone know if unanimity has been reached or not? What has Congress done to find out?

All of this produces a "smell" that leaves the people with no congressional champion, and no way to hold the High Court accountable through the Congress.