The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.

It shouldn’t be a stretch for most of them to understand what it’s like to be old.

I don’t buy the Right’s idea that only the left are activist. It seems to me that the idea of an activist is someone who doesn’t agree with you.

Case in point: The Right’s current approach to Roe v. Wade seems to be appointing activist judges who will overturn it.

All you people can have justice dealt out to y’all, while I’ll take a heapin’ helpin’ of mercy, thanks.

“Which is a better judge, the one that applies the law in an indifferent manner, or the court that can demonstrate sympathy for the individual? Is there a right and wrong answer to this question?”

I think the final lines of the post are a good challenge, something to think about. My first reaction is to say that the best judge’s character would probably include elements of both types and that indifferent justice or sympathy for the individual case might be appropriate at different times, depending on who is the defendant and what the case is about.

It’s wise to remember, if we went with original intent, we’d still have slaves. And women wouldn’t vote.

We don’t have slaves? Then who are those people serving in the nursery???

queno, that’s not a very good argument.

First of all, there’s nothing in the Constitution that prohibited women or slaves or anyone from voting. On the contrary, it did not expressly grant or deny any right to vote to anyone at all — not women, not men, not slaves, not even white landholding men. There is only one type of direct voting originally conceived of within the Constitution; viz., the election of members of the House of Representatives. All that the constitution says in regard to qualifications to vote is this: “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

Further amendments to the Constitution established minimum requirements for enfranchisement. The amendment that established the direct election of Senators extended these requirements beyond the House of Representatives.

Since the Constitution still allows state legislatures to elect Electors for President, you actually do not have a Constitutional right to vote for the presidential electors, whether you’re black, female, or a white male landowner. You gain your ability to vote for presidential electors by virtue of a statute passed by your state legislature. Since this statute creates a Federal election, the resulting election is liable to the rules of all Federal elections; i.e., the minimum requirements for enfranchisement as specified in the amendments.

But more to the point, original intent included the intent to allow for amendments. Slavery was abolished by an amendment, which we assess by virtue of the original intent of the citizens who ratified it. This is an important point: The Supreme Court didn’t get rid of slavery by judicial fiat; i.e., it didn’t invent something new within a living, breathing Constitution in order to deal with a changing society. This change required an amendment. Given the way that the Supreme Court behaves nowadays, it’s not clear that we’ll ever need another amendment. Giving this kind of power to the Supreme Court creates an oligarchy.

The most disturbing thing about the Supreme Court is that you consistently hear its life-long members say that over time, they develop a deeper respect for precedent, which is to say that they get a more and more inflated view of their own importance. The establishment of the Supreme Court is the single, most serious flaw in the Constitution, because it creates a system that takes people, gives them unlimited power with no accountability, and makes them into criminals. And the Executive Branch won’t throw them into jail (where they belong). And the Legislative Branch won’t throw them out of office (which isn’t as good as jail, but better than having them on the court until they die much too late). And so we’re stuck with the justices’ edicts and the interminable myth (decades, if not centuries old) that just one more conservative president will tilt the balance of this court that corrupts its members to the core of their soul, and is therefore conservative-proofed by virtue of its structure.

Everyone has moral blind spots, queno. Arguing that the intent of founders should be disqualified by the fact that they own slaves is like arguing that Joseph Smith’s theology should be discarded because he practiced polygamy. The amendment issue is still everything: They recognized that there would be a need to depart from their intent. And you do nothing to address the issue that the Supreme Court now amends the Constitution by judicial fiat, thereby circumventing the prescribed law of the land.

The genius of the US Constitution is its minimalism. It’s framers knew that it would never contain a complete list of everything thing that was good and just in the world, and so they never tried to make it contain that. The puffed up criminals that sit on the court today seek to change that, and every court — no matter how “conservative” the media tells us that they are — gets closer and closer to saying that something is constitutional if and only if it seems sound and sensible to them personally. The “Federalist turn” of the Rehnquist court consisted of little more than deciding that minimum wage laws do not apply to state governments. Yippee for Federalism!

Regarding life-long appointments: The court decisions get made by popular opinion no matter what. It’s just a question of whose popular opinion. We can have 9 criminals beholden to nobody, or we can have 9 politicians beholden to an electorate. The lesser of the two evils is the one that introduces some manner of accountability, no matter how meager. One way or another, we need to get these low-lifes off of the court. We can throw the current crop of court criminals into jail, but why do the same to their successors? Expiring their term of service is easier.

No doubt about it: There is a special place in perdition for US Supreme Court justices.

No. 11: The process is the goal. That is what our federal Constitution is. The government may take your life, liberty, and property with what? Answer: due process, otherwise known as an elected legislative branch that make the laws – an executive branch that enforces those laws – and a judiciary that verifies the law was broken or complied with.

Always remember, the Constitution is just that, the establishment of process, a governmental framework that was designed to create a federal government with certain enumerated powers and to de-centralize power as much as possible. That is its genius, and why in 1789 it was a revolution and for the most part still is today.

No. 16: DKL, I know you know this, but once again, remember the Supreme Court is still the weakest branch of government, by far. Almost all its power is given it by a Congress more inclined to let the Court make the tough political calls so as to avoid taking unpopular stands in an election year. After all, the Court is never up for re-election. If Congress desired it could clear the Court’s docket of all but a few cases each term, it could reduce its funding to almost nothing (except the justice’s salaries), it could pack the court (though FDR did run into some opposition to this idea), to name a few options. You may blame the Court, but it is akin to getting upset at the spoiled child for the parent’s excesses.

No. 19: If you believe originalism is “crazytalk” then I have not made myself clear. I apologize. Please re-read Bishop Hoadley’s quote from the beginning of this post. If a federal judge is allowed to freely interpret the Constitution at his or her discretion then I hope you can see how out of control the text may become. For example, some judges read the 8th Amendment prohibition on cruel and unusual punishment to mean that the death penalty is unconstitutional because that judge thinks the practice of capital punishment is cruel. You may remember that for a time the death penalty was outlawed in the U.S. because a majority of the Court thought capital punishment was cruel. Is the death penalty to be outlawed and then reinstated, then outlawed, then reinstated depending on who is sitting on the Court? Well, it could I guess. But how can that be when there is a written text?

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

What does that mean? Bob, originalism is merely an anchor for the Constitution. I would argue that the 8th Amendment does not prohibit the death penalty because people were put to death routinely from 1789 to 1972. There was never a problem with the constitutionality of the death penalty itself. Now, this is not an argument over whether capital punishment is a good policy or not. The question is whether it is constitutional. Continuity of process it the goal of the originalist. If the Constitution may change at the whim of a judge then what civil right is safe, what process is secure?

John

Keeping the death penalty is a poor example of original intent. While it is clear we need a death penalty prosecutors want a death verdict every time the community gets upset. Twice the number of death row inmates have been released due to DNA or other evidence that proves they are not guilty as the number of death ros inmates that have been executed. The cost of putting someone to death is significantly higher than life with no parole. But I am not sure an angry mob burning witches or conducting a lynching is exactly the kind of example we should be following.

I would like righteous judges but even the BofM couldn’t pull that off as long as our court system has been in place.

I think strict constructionism is a more reliable guide to constitutional interpretation than originalism is. If the original intent, whatever it was, did not make it into the text in some relatively explicit fashion, it is irrelevant.

The death penalty is mentioned in the text of the Constitution in several places, so it is hard to argue that it is unconstitutional. It doesn’t matter whether the founders wanted it to be prohibited or not – the text is explicit.

No. 24: Mark, please give me a working definition of strict constructionism.

Whoa, Mr. Marshall, no right to privacy? No right to contraception? How many pesky rights, other than the one enshrined in the constitution, the right to vote, do you think us women should have?

Well, your first question is more of a “should you kill puppies or should you pet them?” kind of question.

I think judges should interpret the constitution looking at society today. I do not think Roe v. Wade should be overturned.

As far as the individual question that you asked, I believe that America stands for the individual and our laws should all be geared to the individual. That being said, for the most part, the majority reflects concern toward the individual. The “left” whatever that is, I’ll use the Democrats, appear to have more concern for the individual, the poor and the oppressed. And sometimes, the minority situation needs to be addressed more fully.

Am I making one bit of sense? I know what I’m trying to say. Ultimately, I prefer a balance, with nether party or philosophy ruling. I think we need both left and right.

31: the 9th Amendment is an inkblot

Hah! There goes your Supreme Court nomination!

“Thank you for raising Loving v. VA. I do not ignore the 14th Amendment. Looking at the society that adopted the 14th Amendment, it would seem clear, to me at least, the VA statute and also Plessy v. Ferguson were unconstitutional. Why didn’t the Court do something earlier? The language of the 14th Amendment was in place, but not the will to enforce it, after the compromise of 1877. Unfortunately, but arguably necessary, the country had to wait for people’s attitudes to change. I am not defending, just explaining.”

How is the above explanation any different that a similar one for privacy?

Thank you for raising Loving v. VA. I do not ignore the 14th Amendment. Looking at the society that adopted the 14th Amendment, it would seem clear, to me at least, the VA statute and also Plessy v. Ferguson were unconstitutional. Why didn’t the Court do something earlier? The language of the 14th Amendment was in place, but not the will to enforce it, after the compromise of 1877. Unfortunately, but arguably necessary, the country had to wait for people’s attitudes to change. I am not defending, just explaining.”

Still mulling this. Doesn’t this negate your not-quite-stated-but-understood originalist argument?

I feel like “redistribution of wealth” is such an obtuse term… Do we mean redistribute by taking the rich down to nothing and elevating the poor? Or do we just mean making everyone “equal” regardless of how much money they truly earn and how much effort they put into earning it? I tend to lean to the right (I know… it’s shocking for a Mormon to vote Republican) so I’m not all that excited about any “redistribution” of my money unless I’m seeing something come out of it. It’s one thing if there’s no corruption but we’re not going to see that in the government. And doesn’t the Supreme Court have better things to do?

No. 30: annegb, you make perfect sense. Thank you for adding your $.02. With respect to Roe v. Wade why don’t you think it should be overturned. The argument on the left nowadays is that “Roe v. Wade was far from a model of legal reasoning, and conservatives have been correct to criticize it.” But it has been the law for so long it is just better left alone. Do you agree with such reasoning? Under this same reasoning wasn’t the Court then wrong in Brown v. Board of Education to overturn Plessey v. Ferguson?

No. 33: First I do not know what you mean when you say “right to privacy”. I gave you a workable definition of privacy, what’s yours. Do you have the right to smoke crack in your home under this right to privacy? What are its boundaries, if any? The text of the Constitution does not explicitly give you a right to buy or use contraception; it does not even use such words. Again, this is not about whether such a law is a good policy; it is about such a laws constitutionality. I think the CT statute was an uncommonly silly law. I would not support anyone running for office with that policy as part of his or her platform. With respect to the privacy of your finance, health, and communications records, yes, all those are statutory rights. You, of all people, should know this. These statutes do not exist because of some amorphous right to privacy. Please, have a little more faith in the people you elect to your legislature and Congress. Well, maybe not Congress.

You may, if you choose to go through all the time and expense of forming the needed grass roots organization, attempt to enshrine your right to privacy into the Constitution through the amendment process. I can think of 2 reasons you are not likely to take this route. First, I imagine that most of what you think the right to privacy encompasses, is already written into statute. Second, why go through all that time and process of amending the text when we have the Ninth Circuit Court of Appeals?

No. 34: Where is the constitutional language for the nebulous privacy right of which you speak?

No. 35: It is just history. The southern states ratified the amendment under the duress of military occupation. The choice was to keep the south subject to military rule or ignore it for a while.

Rights to privacy? Ha ha ha

http://harpers.org/archive/2008/03/hbc-90002589

Mr. Calabresi, in an opinion piece published today says this:

“…This raises the question of whether Mr. Obama can in good faith take the presidential oath to “preserve, protect, and defend the Constitution” as he must do if he is to take office. Does Mr. Obama support the Constitution as it is written, or does he support amendments to guarantee welfare? Is his provision of a “tax cut” to millions of Americans who currently pay no taxes merely a foreshadowing of constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth? Perhaps the candidate ought to be asked to answer these questions before the election rather than after.

“Every new federal judge has been required by federal law to take an oath of office in which he swears that he will “administer justice without respect to persons, and do equal right to the poor and to the rich.” Mr. Obama’s emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.

“…If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.

Nothing less than the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation’s courtrooms.”

Sorry about its length (I quoted only some of the article). However, I thought it was a very good article and a very important subject right now. The entire article can be read here: http://online.wsj.com/article/SB122515067227674187.html

Now, in section 98 of the Doctrine and Covenants the Lord says this:

“And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me. Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land; And as pertaining to law of man, whatsoever is more or less than this, cometh of evil.” (verses 5-7)

I believe a loose and biased interpretation of the Constitution (and especially when such interpretation is motivated by favoritism of a certain person or party over another) would easily extend “more” to the Constitution than is really there, make “less” of the Constitution in areas that are otherwise explicit. The subject matter here is very important for the Latter-Day Saints. The only other times in scripture where the language of “more or less than this, cometh of evil” is used is pertaining to Christ’s Gospel, and of revelation. The stamp of approval the Lord puts upon the Constitution, this sacred “law of man”, comes with pretty tight conditions: “whatsoever is more or less than [the constitutional law of the land], cometh of evil. An Obama appointed judge sounds like someone whose judgment might “cometh of evil” as they would certainly create more and make less of many aspects of the Constitution.

A few comments were made above pertaining to the principle of redistribution of wealth. (This issue was addressed somewhat in the opinion article cited above). I would just like to quote again from the Doctrine and Covenants on this principle: “Therefore, it is not right that any man should be in bondage one to another. And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood.” (verses 79-80) It seems like a requirement upon one man to labor for another man’s bread puts both men in bondage – the working man of course is in bondage to the other, and the other man is in bondage to his parasitic condition. The Lord “established the Constitution of this land, by the hands of wise men whom [He] raised up unto this very purpose”: to eliminated a condition where “any man should be in bondage one to another”.

During this election perhaps, we should be pray, as Joseph Smith prayed, while dedicating the Kirkland Temple:

“Have mercy, O Lord…have mercy upon the rulers of our land; may those principles, which were so honorably and nobly defended, namely, the Constitution of our land, by our fathers, be established forever.”

It seems clear to me that any political course or any presidential candidate or judge or lawmaker that seeks to disestablish or remove the Constitution that the Prophet of this dispensation prayed to “be established forever” is evil. There is no question in my mind that our country and government has taken the dangerous course. It seems our country has complied with Joseph Smith’s prophecy: “Even this Nation will be on the very verge of crumbling to pieces and tumbling to the ground and when the constitution is upon the brink of ruin this people will be the Staff up[on] which the Nation shall lean and they shall bear the constitution away from the very verge of destruction.” (The Historians Corner, BYU Studies, Vol. 19, No. 3, p. 391-392) I hope the Latter-Day Saints are ready to bear up this nation should our Constitutional footings continue to erode as they have.

No. 43: I enjoyed each of the articles you linked. But each one discusses a statutory privacy right. I though you were arguing that there was a Constitutional right to privacy. So that you know, I believe in statutory privacy rights. Are you saying that statutory privacy rights derive from the Constitution?

No. 44: Kent! Thank you for the link! Do not bother about the length of the quote. Any time one can quote Steven Calabresi, I say take all the space you need!

Kent, I hate to ask, and I hope you don’t think I am being forward, but are you the one of whom the White Horse Prophecy spoke?