this is why it should be easy to remove a sitting judge - Page 2 - Tilted Forum Project Discussion Community

smooth · 04-11-2007, 11:05 AM

ubertuber, I didn't claim that a right must be specifically enumerated in the constituation for it to be valid.
EDIT: oh, and I should probably add right here that depending on how "strong" the court considers a right, that's the level of scrutiny they will apply to abridgement of said right. so that means clear consitutional rights are held to the highest standard before determining if curtailing them was appropriate or not (not that it can't ever happen, but whether the interest of the government meets or exceeds the standard for doing so

) /EDIT

I wrote that constructionists believe that.
And, up until today, dksuddeth has been a constructionist.
his every post on gun control hinges on the explicit words of the 2nd amendment, and all of his arguments I can remember defend the proposition that judges should a) not be activist from the bench (finding rights where none are explicitly written) and b) that justices can (and should) infer the constituational framers' original intent.

now, setting that aside to answer you on who holds what rights...that's pretty much been my point in past threads...and it's implied in my responses here: in so far as the federal consitution doesn't say an explicit peep about traveling, the states have a right to control/restrict their own as well as incoming citizens' rights to travel. the courts have held this to be true...and since they've decided that there is a right to travel, they mandate that the state must have a reason that is compelling to their interest before curtailing it. only after all that does a citizen have a personal right to move around as he or she sees fit. and in this particular case, it's an uphill battle to argue that the state doesn't have a compelling interest to control movement during evacuations persuant to a national emergency...

and I'm curious whether anyone went so far as to actually read up on this particular case...because if so, that person will notice that the judge ONLY said nay on the right to travel issue. The two still have a slew of other claims that the judge didn't toss...

dksuddeth · 04-11-2007, 11:30 AM

Quote:

Originally Posted by smooth

I wrote that constructionists believe that.
And, up until today, dksuddeth has been a constructionist.
his every post on gun control hinges on the explicit words of the 2nd amendment, and all of his arguments I can remember defend the proposition that judges should a) not be activist from the bench (finding rights where none are explicitly written) and b) that justices can (and should) infer the constituational framers' original intent.

Not sure where I said that I was a constructionist, although i'm pretty sure that my definition of a constructionist is not going to be the same as yours. If Scalia is your definition of a constructionist, then I most certainly am not. Scalia is only a constructionist when it comes to things that he idealizes. Take, for example, the right to an abortion. His 'constructionism' tells him that since it's not specifically enumerated it must not exist, however, in the Raich case he goes on to say that the commerce clause gives congress to regulate the totally intrastate and personal growth and use of marijuana because marijuana CAN be interstate commerce, even if it's illegal commerce. That is not constructionism nor original intent. MY definition of constructionist, or original intent, is that ALL individuals have ALL rights and power but the constitution enumerates CERTAIN powers to the central government and that judges should not be granting extra powers to the government that weren't originally enumerated to them.

smooth · 04-11-2007, 12:23 PM

Quote:

Originally Posted by dksuddeth

Not sure where I said that I was a constructionist, although i'm pretty sure that my definition of a constructionist is not going to be the same as yours. If Scalia is your definition of a constructionist, then I most certainly am not. Scalia is only a constructionist when it comes to things that he idealizes. Take, for example, the right to an abortion. His 'constructionism' tells him that since it's not specifically enumerated it must not exist, however, in the Raich case he goes on to say that the commerce clause gives congress to regulate the totally intrastate and personal growth and use of marijuana because marijuana CAN be interstate commerce, even if it's illegal commerce. That is not constructionism nor original intent. MY definition of constructionist, or original intent, is that ALL individuals have ALL rights and power but the constitution enumerates CERTAIN powers to the central government and that judges should not be granting extra powers to the government that weren't originally enumerated to them.

well, now it's my turn to admit I'm stumped by your response
it looks like you said that you're not a constructionist as I would think of one, but you are a constructionist as you think of one?

I actually gave a point a & b to support my claim of your constructionist stance. Since you didn't even address them, I'm going to assume my memory is correct in regards to those two points until you say otherwise....

as for Scalia, since neither he nor I call or consider him to be one, I fail to see the relevance of tossing him out there...unless it was a strawman.

lastly, I'm confused on your read of the constitutional rights being directed toward what the government can do because I distinctly remember you railing against me in the past that the amendments are specifically what the government CAN'T do. My memory may be faulty, I may be thinking of someone else, but reading over the Bill of Rights I'd have to say that the rights written therein are directly speaking against your analysis that they are rights of what the government CAN do rather than what the feds CAN NOT do. (and here we'll probably break down again because it was this precise point, that it wasn't until much much later that anyone conceived of the idea that those rights would limit what the state or a local city can not do, it's this precise point that our discussions in the past have broken down)...yet in this case, you want us to agree with you that these two indvidual citizens have inaliable rights over the local police force.

loquitur · 04-17-2007, 10:48 AM

Not to belabor points, but back in law school the standard formulation of the "interpretivist" school was that you have federal constitutional rights if they are either expressly stated or fairly inferred from the constitution's language or structure. The right to travel is a "structure" right - e.g. the right to petition the government for redress of grievances (first amendment) fairly implies that you can get to the seat of government to present your petition; it's also implied by, for example, the empowerment of congress to regulate interstate commerce - without travel there would be nothing to regulate. (The "noninterpretivist" view would basically leave it to judges to figure out what's right. This is a VAST oversimplification, of course.)

The other thing people miss about the "idiot" judges is that there are rights to appeal. They exist precisely because judges can get things wrong. Statistically it doesn't happen all that often (I think something like 80% of appeals end in an affirmance), but it does happen. A trial level judge gets appealed, and appeals judges sit in panels of three, so if one of them is an idiot s/he'll get outvoted.

Also, I find some of the arguing about opinions to be a bit strange, because people are misreading technical terms (like "final") to mean something that they don't mean as used in an appellate opinion. A "final" decision, as the term is used in an appeals court's opinion, means it's not "interlocutory" (which is the opposite of "final") - technically, it means that the what was done by the administrative agency or the lower court is ready to be appealed because there aren't any more substantive decisions to be made that warrant holding up taking an appeal. A decision can be appealed in the federal system only if it's "final."

smooth · 04-17-2007, 03:34 PM

Would you agree that Scalia would consider himself an adherent of the interpetivist school?

(I'm assuming you draw a distinction between constructionist and interpretivist, correct? I mean, both fall under the judicial restraint paradigm, but seperate schools of thought)

Judicial Restraint paradigm:
1) strict constructionist -- only concerned with the literal lettering of the law [what I think dksuddeth demonstrates in his various analyses)
2) interpretivist -- concerned with both the lettering of the law along with original intent (cf. Bork)

cf. Greenhouse for support for the importance/necessity of activist judges

loquitur · 04-17-2007, 07:06 PM

I'm not sure I like the term "strict constructionist" because it carries all sorts of baggage. Scalia calls himself a "textualist", though he'll be the first to tell you that textualists can and do disagree -- which doesn't surprise me as a lawyer, because I can tell you that parties to a contract disagree about what was intended by the words all the time. That doesn't mean a court can invent new terms instead of trying to find the most reasonable meaning. And that's all textualism is: we have words, we have to figure out what those words mean, or what range of meanings they have. The reason to write things down and to choose the words you use is precisely so that there will be a guide to future conduct. Otherwise why bother writing it down?

The rationale for having judicial review (back in Marbury v Madison) is that the constitution is law, just like a contract or a will, so figuring out what it means is a judicial task. That necessarily implies that the words have an ascertainable meaning. Plus, if it's necessary to change what the Constitution says, there is a mechnaism built right into it, in Article V. It's not for judges to change it.

That isn't to say that there are no new issues or new applications of old concepts - that's why the const has open-ended phrases, precisely so that it's flexible. But flexible is not the same thing as mutable. Original meaning is a perfectly workable guide to decision.

smooth · 04-17-2007, 07:23 PM

OK, so now I'm getting a sense of when you went to law school.

hmm, but where would you place Bork then (if different)?
Or how would you rework the partial typology I posted of restraintive positions?
AKAIK, interprativist and textualist are not distinct...the former is an earlier designation?

Whether you or I like the phrase "strict constructionism" is neither here nor there. I've defined it and am not carrying any political baggage with it. I do not see anything in dksuddeth's position that allow anything other than a literal reading of the words written. He even explicitly differentiated himself from Scalia...

loquitur · 04-17-2007, 10:20 PM

Smooth, I graduated law school in '84.

Bork was ....... well, a curmudgeonly version of Scalia, without the libertarian streak. Modern original meaning theorists tend to go up a single level of abstraction, so to speak: so (for example) speech/press/assembly/petition are all expressive rights, and expression is protected. Whereas Bork once floated the idea that the first amendment protects ONLY political speech.

To my mind, taking the const seriously means that rights come from two places: (1) direct restrictions on govt'l ability to act (whether express or implied) - this is what we typically think of as rights; and (2) structural constraints on the ability of govt to act (which in turn come in two types, separation fo powers and federalism). Each type is essential to protecting our liberties. Never underestimate how important the second type is: it's what Jefferson thought was the primary protection for the citizenry against tyranny.

I would say textualist is a subset of interpretivist. An interpretivist will try to ascertain the meaning of the words by looking to logical sources. A textualist, in theory, looks at the words and tries to figure out what they mean. The textualist will use fewer sources of guidance, I would guess. Think back to how Roberts explained his approach in his Judiciary Committee hearings - that's interpretivism. Ditto for Alito. It's still bound to the text, but it's not limited to the text. Thomas, on the other hand, is a more pure textualist than Scalia: he looks to original meaning, period.

I haven't followed this stuff all that closely since law school, though I do still read casually about it, enough to keep a hand in and follow the arguments. Back in law school Brennan was still on the court doing his thing - very different kind of court.

smooth · 04-18-2007, 05:43 PM

loquitor, you weren't supposed to *tell* me!

Thank you for the information.
I had to cf. Jefferson with federalism because I wasn't sure if you meant for me not to underestimate structural constraints or federalism

I think it'd be an interesting research question comparing the implications federal agencies (operating outside the tripartate seperation of powers model) have on our everyday lives to the folding of state agencies under the federal homeland security umbrella.

It would seem, from what I've read, that Jefferson would be most concerned about the latter. I wonder how I'd operationlize that...something like rates of civil complaints would give us some insight into how people felt their rights were being violated; but that wouldn't account for the fact that people have differential access to the courts.

Do you have an idea of how I'd operationalize that question?
(or is the question uninteresting?

)

loquitur · 04-20-2007, 10:40 AM

I don't know what "operationalize" means.

Yakk · 04-22-2007, 07:18 AM

Anyone have a link that actually details what happened in this case?

Ie, was the bridge owned and administered by the county?

Did the county pass laws that state it would be closed, or did the police just decide? (Due process)

What arguements and cases where brought up by the citizen in their case?

...

And, in US justice, does the judge have an obligation to look up cases that the attournies on each side do not bring up?

host · 04-22-2007, 09:08 AM

Quote:

Originally Posted by Yakk

Anyone have a link that actually details what happened in this case?

Ie, was the bridge owned and administered by the county?

Did the county pass laws that state it would be closed, or did the police just decide? (Due process)

What arguements and cases where brought up by the citizen in their case?

...

And, in US justice, does the judge have an obligation to look up cases that the attournies on each side do not bring up?

The answers to some of your questions are here: http://209.85.165.104/search?q=cache...lnk&cd=5&gl=us the link is to a threas OP from Sept. 2005 containing quotes from Gretna police about the rationale for closing the bridge to pedestrians......]

Yakk · 04-22-2007, 12:19 PM

No, that post doesn't answer any of my questions.

dksuddeth · 04-23-2007, 02:21 PM

Quote:

"We were not contacted by anyone" about the instructions being given to survivors to use the bridge to get out of town, he said(sheriff lawson).
The two paramedics, who were trapped in the city while attending a convention, joined a group of people who had been turned out by the hotels that they were staying in on Wednesday. When the group attempted to get to the Superdome -- designated by city authorities as a shelter for those unable to evacuate -- they were turned away by the National Guard.
"Quite naturally, we asked ... 'What was our alternative?' The guards told us that that was our problem, and no, they did not have extra water to give to us.

This is expressly the reason that the right to travel exists.

Quote:

Originally Posted by Yakk

Anyone have a link that actually details what happened in this case?

hosts link didn't give you that info?

Quote:

Originally Posted by Yakk

Ie, was the bridge owned and administered by the county?

can't say for sure, but i'm guessing that it would either be county or state owned, state most likely.

Quote:

Originally Posted by Yakk

Did the county pass laws that state it would be closed, or did the police just decide? (Due process)

From the article - "police from Gretna City, Jefferson Parrish and the Louisiana State Crescent City Connection Police Department closed to foot traffic the three access points to the bridge closest to the West Bank of the river."

Quote:

Originally Posted by Yakk

What arguements and cases where brought up by the citizen in their case?

i'll find the published decision.
...

Quote:

Originally Posted by Yakk

And, in US justice, does the judge have an obligation to look up cases that the attournies on each side do not bring up?

not that i'm aware of, unless the judge decides that there is another case that holds precedent that was not brought up.

Yakk · 04-23-2007, 05:42 PM

Quote:

Originally Posted by dksuddeth

This is expressly the reason that the right to travel exists.

hosts link didn't give you that info?

No, as far as I read, as one amoung many articles, it gave a cursory description of what happened at the bridge. There was no information that I read about the actual case.

Quote:

can't say for sure, but i'm guessing that it would either be county or state owned, state most likely.

From the article - "police from Gretna City, Jefferson Parrish and the Louisiana State Crescent City Connection Police Department closed to foot traffic the three access points to the bridge closest to the West Bank of the river."

And was there any process involved in that decision? Did the county pass a law blocking passage over the bridge? Or was it done by the fiat of the police and/or county executive?

There is a difference between the government doing something via fiat and whim, and doing it by legal process.

Quote:

not that i'm aware of, unless the judge decides that there is another case that holds precedent that was not brought up.

So, all of these articles linking to previous decisions, do we have any evidence that the plaintiff brought them up during the trial?

Yet we have people calling for the judge's job. Strange, how people jump to conclusions.

smooth · 04-25-2007, 01:17 AM

Quote:

Originally Posted by loquitur

I don't know what "operationalize" means.

operationalize is how you measure a concept.
since you can't directly measure an idea, you have to come up with a tangible thing that adequately represents the idea you want to know about.
In this case, the idea is that civil rights claims would adequately represent people's perceptions of injustice...because people will file generally claims when they feel their rights are violated. but I brought up the problem that not everyone can or wants to file cases. the additional problem of then I'd only be measuring perceptions of injustice, at best, not actual instances of it makes it not very suitable as a measure.

so I don't know, I need a better measure of injustice.
so the question of how would I operationlize it was a question to someone who practices law (you) of how you think injustice can be measured.

loquitur · 04-25-2007, 06:13 AM

having worked in the courthouse and in the legal profession, I can tell you that a lot of lawsuits get filed because there are "hooks" for them, not becuase the person is genuinely aggrieved. It's the modern day equivalent of a saloon brawl in Dodge City. You get "dissed," you sue.

dksuddeth · 05-16-2007, 05:46 AM

Judge acquits police captain of DUI, with an alc lvl of .19

Quote:

RED BANK … A Wall Township police captain whose nomination to become chief of the department was yanked after an underling charged him with drunken driving was acquitted Monday.

Bernard Sullivan was found not guilty in a municipal court trial that had been moved to Red Bank to remove the appearance of a conflict of interest.

Municipal Court Judge William Himelman said Sullivan's lawyer created reasonable doubt as to whether Sullivan was drunk when he was pulled over on Jan. 27 by Patrolman Todd Verrecchia.

Red Bank Municipal Prosecutor James N. Butler, who said the police captain's breathalyzer reading was .19 … more than twice the legal limit of intoxication … was incredulous at the verdict.

šI just don't understand it,™ he said Monday afternoon. šOnce we get a .19, how do you just say he's not guilty? That's saying you don't believe the (arresting) police officer.™

An after-hours message left for the judge was not immediately returned Monday afternoon.

Sullivan's lawyer, James Fagan, did not immediately return a call seeking comment Monday.

Verrecchia had testified that he observed Sullivan run a red light at intersection of Route 35, crossing in front of Verrecchia's patrol car and nearly colliding with another car on the highway.

Testimony at the trial indicated the two men had clashed several times before. Verrecchia is part of a pending lawsuit accusing Wall Township and several police officials with violating officers' privacy by placing a hidden camera in the locker room in an attempt to find out who had been placing racially hostile notes in the locker of a minority officer.

Sullivan also had disciplined Verrecchia in the past, according to testimony.

After spending time at two area bars, Sullivan was pulled over by a Manasquan police officer, but let off with a warning, according to testimony. Shortly afterward, when he arrived in Wall, Verrecchia pulled him over and charged with drunk driving.

04-11-2007, 11:05 AM	#41 (permalink)
smooth Junkie Location: Right here	ubertuber, I didn't claim that a right must be specifically enumerated in the constituation for it to be valid. EDIT: oh, and I should probably add right here that depending on how "strong" the court considers a right, that's the level of scrutiny they will apply to abridgement of said right. so that means clear consitutional rights are held to the highest standard before determining if curtailing them was appropriate or not (not that it can't ever happen, but whether the interest of the government meets or exceeds the standard for doing so ) /EDIT I wrote that constructionists believe that. And, up until today, dksuddeth has been a constructionist. his every post on gun control hinges on the explicit words of the 2nd amendment, and all of his arguments I can remember defend the proposition that judges should a) not be activist from the bench (finding rights where none are explicitly written) and b) that justices can (and should) infer the constituational framers' original intent. now, setting that aside to answer you on who holds what rights...that's pretty much been my point in past threads...and it's implied in my responses here: in so far as the federal consitution doesn't say an explicit peep about traveling, the states have a right to control/restrict their own as well as incoming citizens' rights to travel. the courts have held this to be true...and since they've decided that there is a right to travel, they mandate that the state must have a reason that is compelling to their interest before curtailing it. only after all that does a citizen have a personal right to move around as he or she sees fit. and in this particular case, it's an uphill battle to argue that the state doesn't have a compelling interest to control movement during evacuations persuant to a national emergency... and I'm curious whether anyone went so far as to actually read up on this particular case...because if so, that person will notice that the judge ONLY said nay on the right to travel issue. The two still have a slew of other claims that the judge didn't toss... __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman Last edited by smooth; 04-11-2007 at 11:11 AM..

04-17-2007, 03:34 PM	#45 (permalink)
smooth Junkie Location: Right here	Would you agree that Scalia would consider himself an adherent of the interpetivist school? (I'm assuming you draw a distinction between constructionist and interpretivist, correct? I mean, both fall under the judicial restraint paradigm, but seperate schools of thought) Judicial Restraint paradigm: 1) strict constructionist -- only concerned with the literal lettering of the law [what I think dksuddeth demonstrates in his various analyses) 2) interpretivist -- concerned with both the lettering of the law along with original intent (cf. Bork) cf. Greenhouse for support for the importance/necessity of activist judges __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

04-17-2007, 07:23 PM	#47 (permalink)
smooth Junkie Location: Right here	OK, so now I'm getting a sense of when you went to law school. hmm, but where would you place Bork then (if different)? Or how would you rework the partial typology I posted of restraintive positions? AKAIK, interprativist and textualist are not distinct...the former is an earlier designation? Whether you or I like the phrase "strict constructionism" is neither here nor there. I've defined it and am not carrying any political baggage with it. I do not see anything in dksuddeth's position that allow anything other than a literal reading of the words written. He even explicitly differentiated himself from Scalia... __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman Last edited by smooth; 04-17-2007 at 07:36 PM..

04-17-2007, 10:20 PM	#48 (permalink)
loquitur Junkie Location: NYC	Smooth, I graduated law school in '84. Bork was ....... well, a curmudgeonly version of Scalia, without the libertarian streak. Modern original meaning theorists tend to go up a single level of abstraction, so to speak: so (for example) speech/press/assembly/petition are all expressive rights, and expression is protected. Whereas Bork once floated the idea that the first amendment protects ONLY political speech. To my mind, taking the const seriously means that rights come from two places: (1) direct restrictions on govt'l ability to act (whether express or implied) - this is what we typically think of as rights; and (2) structural constraints on the ability of govt to act (which in turn come in two types, separation fo powers and federalism). Each type is essential to protecting our liberties. Never underestimate how important the second type is: it's what Jefferson thought was the primary protection for the citizenry against tyranny. I would say textualist is a subset of interpretivist. An interpretivist will try to ascertain the meaning of the words by looking to logical sources. A textualist, in theory, looks at the words and tries to figure out what they mean. The textualist will use fewer sources of guidance, I would guess. Think back to how Roberts explained his approach in his Judiciary Committee hearings - that's interpretivism. Ditto for Alito. It's still bound to the text, but it's not limited to the text. Thomas, on the other hand, is a more pure textualist than Scalia: he looks to original meaning, period. I haven't followed this stuff all that closely since law school, though I do still read casually about it, enough to keep a hand in and follow the arguments. Back in law school Brennan was still on the court doing his thing - very different kind of court. Last edited by loquitur; 04-17-2007 at 10:26 PM..

04-18-2007, 05:43 PM	#49 (permalink)
smooth Junkie Location: Right here	loquitor, you weren't supposed to tell me! Thank you for the information. I had to cf. Jefferson with federalism because I wasn't sure if you meant for me not to underestimate structural constraints or federalism I think it'd be an interesting research question comparing the implications federal agencies (operating outside the tripartate seperation of powers model) have on our everyday lives to the folding of state agencies under the federal homeland security umbrella. It would seem, from what I've read, that Jefferson would be most concerned about the latter. I wonder how I'd operationlize that...something like rates of civil complaints would give us some insight into how people felt their rights were being violated; but that wouldn't account for the fact that people have differential access to the courts. Do you have an idea of how I'd operationalize that question? (or is the question uninteresting? ) __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

04-17-2007, 10:48 AM	#44 (permalink)
loquitur Junkie Location: NYC	Not to belabor points, but back in law school the standard formulation of the "interpretivist" school was that you have federal constitutional rights if they are either expressly stated or fairly inferred from the constitution's language or structure. The right to travel is a "structure" right - e.g. the right to petition the government for redress of grievances (first amendment) fairly implies that you can get to the seat of government to present your petition; it's also implied by, for example, the empowerment of congress to regulate interstate commerce - without travel there would be nothing to regulate. (The "noninterpretivist" view would basically leave it to judges to figure out what's right. This is a VAST oversimplification, of course.) The other thing people miss about the "idiot" judges is that there are rights to appeal. They exist precisely because judges can get things wrong. Statistically it doesn't happen all that often (I think something like 80% of appeals end in an affirmance), but it does happen. A trial level judge gets appealed, and appeals judges sit in panels of three, so if one of them is an idiot s/he'll get outvoted. Also, I find some of the arguing about opinions to be a bit strange, because people are misreading technical terms (like "final") to mean something that they don't mean as used in an appellate opinion. A "final" decision, as the term is used in an appeals court's opinion, means it's not "interlocutory" (which is the opposite of "final") - technically, it means that the what was done by the administrative agency or the lower court is ready to be appealed because there aren't any more substantive decisions to be made that warrant holding up taking an appeal. A decision can be appealed in the federal system only if it's "final."

04-17-2007, 07:06 PM	#46 (permalink)
loquitur Junkie Location: NYC	I'm not sure I like the term "strict constructionist" because it carries all sorts of baggage. Scalia calls himself a "textualist", though he'll be the first to tell you that textualists can and do disagree -- which doesn't surprise me as a lawyer, because I can tell you that parties to a contract disagree about what was intended by the words all the time. That doesn't mean a court can invent new terms instead of trying to find the most reasonable meaning. And that's all textualism is: we have words, we have to figure out what those words mean, or what range of meanings they have. The reason to write things down and to choose the words you use is precisely so that there will be a guide to future conduct. Otherwise why bother writing it down? The rationale for having judicial review (back in Marbury v Madison) is that the constitution is law, just like a contract or a will, so figuring out what it means is a judicial task. That necessarily implies that the words have an ascertainable meaning. Plus, if it's necessary to change what the Constitution says, there is a mechnaism built right into it, in Article V. It's not for judges to change it. That isn't to say that there are no new issues or new applications of old concepts - that's why the const has open-ended phrases, precisely so that it's flexible. But flexible is not the same thing as mutable. Original meaning is a perfectly workable guide to decision.

04-20-2007, 10:40 AM	#50 (permalink)
loquitur Junkie Location: NYC	I don't know what "operationalize" means.

04-22-2007, 07:18 AM	#51 (permalink)
Yakk Wehret Den Anfängen! Location: Ontario, Canada	Anyone have a link that actually details what happened in this case? Ie, was the bridge owned and administered by the county? Did the county pass laws that state it would be closed, or did the police just decide? (Due process) What arguements and cases where brought up by the citizen in their case? ... And, in US justice, does the judge have an obligation to look up cases that the attournies on each side do not bring up? __________________ Last edited by JHVH : 10-29-4004 BC at 09:00 PM. Reason: Time for a rest.

04-22-2007, 12:19 PM	#53 (permalink)
Yakk Wehret Den Anfängen! Location: Ontario, Canada	No, that post doesn't answer any of my questions. __________________ Last edited by JHVH : 10-29-4004 BC at 09:00 PM. Reason: Time for a rest.

04-25-2007, 06:13 AM	#57 (permalink)
loquitur Junkie Location: NYC	having worked in the courthouse and in the legal profession, I can tell you that a lot of lawsuits get filed because there are "hooks" for them, not becuase the person is genuinely aggrieved. It's the modern day equivalent of a saloon brawl in Dodge City. You get "dissed," you sue.