Individual Rights and the Political Process

Posted 23 Jan 2010 at 15:50 UTC (updated 25 Jan 2010 at 13:37 UTC) by badvogato Share This

"Individual Rights and the Political Process: A Proposed Framework for Democracy Defining Cases" by Walter M. Frank

ABSTRACT

For more than four decades, since Baker v. Carr, the Supreme Court has been shaping our democracy in important ways. Among other things, it has approved numerous state laws directed against third parties and independent candidacies, accepted incumbent protection as a redistricting principle, ended the movement for term limits for congressional representatives, eliminated most political patronage, prohibited laws aimed at limiting campaign expenditures, and decided a presidential election. These and other democracy defining cases are often decided on the basis of First Amendment and Equal Protection arguments that do not adequately address the democratic tensions in these cases, resulting in opinions that, because they miss the critical choices the cases present, have failed to create a coherent body of law.

This article proposes that the Court should treat democracy defining cases as a discrete category applying heightened scrutiny to state and federal regulations that undermine a framework of specified procedural objectives based on the concept of the freely given consent of the governed . Part I shows why traditional methods of analysis have proved inadequate for these cases. It also describes the proposed framework itself. Part II then critically analyzes important Supreme Court cases, mostly decided over the last fifteen years, addressing issues of ballot access, voter participation in primaries, redistricting, campaign finance, term limits, and debate inclusiveness, to show why the proposed framework would have produced decisions both more pragmatic (because more concerned with practical consequences) and more principled ( because based on a recognized set of procedural objectives.)

 Table of Contents

Part I - The Proposed Framework The Need for the Framework Description of the Framework

Part II - Applying the Framework Arkansas Educational Television Commission v. Forbes Storer v. Brown Clingman v. Beaver California Democratic Party v. Jones Randall v. Sorrell League of United American Citizens v. Perry U.S. Term Limits v. Thornton Richardson v. Ramirez

Conclusion

Conclusion

Discussing how the Supreme Court approaches constitutional issues of democracy, Richard Pildes has written: "A significant problem in this body of law, in my view, is not that the Court has the wrong functional view of how democracy ought to be understood; it is that the Court refuses to approach these issues in functional terms at all. Instead, the law of democracy remains one of the last bastions of legal formalism in constitutional law."

This article implicitly embraces the criticism of Professor Pildes. It has proposed a framework providing a benchmark of procedural objectives intended to assure the legitimacy of governmental decisions based on the freely given consent of the governed. The need for such a framework of democratic objectives is rooted in (1) the special nature of political rights in which individuals and groups are players in a larger system, our electoral system, whose continued success is the foundation of all our rights; and (2) the simple fact that the traditional tools of legal analysis ( text and discovery of intent) and modes of interpretation ( originalism and deference to legislative majorities) are largely useless in analyzing democracy defining cases. To support our arguement, we analyzed a number of key Supreme Court decisions to point out deficiencies in the Court's treatment of these cases and to show how our proposed standard might have assisted the Court.

Ultimately, of course, the kind of democracy we enjoy and its continued survival depend upon ourselves; that's what self-government means. But the Supreme Court now plays an important role in helping to define the rules of our democracy. This article has tried to show that a different approach to democracy defining cases is both possible and needed and should over time result in a body of decisions both more principled because animated by an agreed upon view of our political system and more pragmatic because focused on the requirement of that system.

I have registered for Mr. Walter M. Frank's lecture at Princeton Adult School, beginning Feb 11 for 6 sessions. I am excited at my chance to hear him in person. So cheers.


The most fierce ideology crash, posted 24 Jan 2010 at 11:17 UTC by badvogato » (Master)

The most fierce ideology crash was depicted by Michael Davies' book "The Second Vatican Council and Religious Liberty"

The cover design is based on a comment by Henri Fesquet in his book "The Drama of Vatican II, which had an enthusiastic introduction for American readers by Michael Novak, who explained that:"From the beginning M. Fesquet knew what was at stake in the Council. His friendship with many of the Council's leading theologians and churchmen, particularly from France, gave him an entree denied to nearly all other journalists...He set the mark against which other journalists of the world in reporting the Council measured themselves. Fesquet's judgement on the Council (which is quoted on page 100 reads:

Liberty, Equality, Fraternity. This liberation of Catholic thought, too long imprisoned in the negative tide of the Counter Reformation, in a way enables the Church to take up the standard of the French Revolution, which make the rounds of the secular world before coming to rest in Catholicism, whence it originated. Liberty, equality, fraternity: this glorious motto was the quintessence of Vatican II as Hans Kung recently suggested.

DEDICATION
This book is dedicated to the memory of Monsignor Joseph Clifford Fenton, Editor of The American Ecclesiastical Review 1944-1963, Whose clear, consistent, and courageous defence of Papal Teaching on Church and State Must once again be vindicated as the authentic Catholic Position.
Magna est Veritas et Pravalet

AN HISTORIC CONFRONTATION

On 18 Nov. 1965, Father John Courtney Murray, S.J., took part in two celebrations. He had received a personal invistation from Pope Paul VI to join with a humber of other theologians in concelebrating Mass with him in St. Peter's Basilica. The second celebration took the form of a champagne party.
In the January 1964 issue of The American Ecclesiastical Review a brief announcement had stated that its Editor-in-chief for twenty five years, Monsignor Joseph Clifford Fenton, had 'resigned because of poor health." The two events were not unconnected.
Msgr. Fenton and Fr. Murray had opposed each other in a longstanding and sometimes bitter debate which had lasted for more than a decade. The champagne party on 18 Nov. 1965 celebrated the total victory of Fr. Murray. Theories which his superiors had forbidden him to propagate in 1955 would be promulgated as the offical teaching of the Second Vatican Council within a few weeks ( on 7 Dec. 1965). Yesterday's heresy had become today's orthodoxy. Msgr. Fenton and Fr. Murray had both been invited to attend the Council as experts (periti). They confronted each other in a dramatic and fateful meeting on 11 Nov. 1963. A draft statement on religious liberty compiled by Cadinal Bea's Unity Secretariat was to be included as Chapter V of the schema (draft document) on ecumenism. Certain members of the Council's Theological Commission considered that the draft contradicted the traditional papal teaching on religious liberty so flagrantly that they did not wish it to be restored to the Council agenda from which it had been removed. What "was perhaps the most important meeting in the history of the religious liberty issue" took place on II Nov. 1963. The full Commission met to debate the issue with a number of periti in attendance. Fr. Murray has described the meeting himself:

Ottaviani, however, called first on Rahner, then on one or two others. Bishop (subsequently Cardinal) Wright introduced my name again, amid other murmurs of approval and invitation, and I got to make my speech - face to face with Ottaviani, with Msgr. Fenton at the end of the periti table. The final vote was 18-5 - a glorious victory for the Good Guys." The meeting lasted from 4:30 to 7:00. And it was pretty tense from the beginning to end...

This decisive vote made the ultimate triumph of Fr. Murray and the downfall of Msgr. Fenton inevitable. Msgr. Fenton had consistently and resolutely upheld the traditional Catholic teaching on the question of religious liberty. As a result of the Liberal triumph at this meeting, opinions which he had denounced as untenable would almost certainly be adopted by the Council, and placed before the faithful as official teaching. A priest of Msgr. Fenton's moral and intellectual stature could hardly have been expected to make a complete volte-face and uphold Fr. Murray's views as authentic Catholic teaching. He resigned as editor of The American Ecclesiastical Review within a few weeks of the meeting.

The five members of the Theological Commission who opposed the inclusion of the Religious Liberty text on the Council agenda were Cardinal Ottaviani, Cardinal Browne, Cardinal Santos of Manila, Cardinal Florit of Florence, and Archbishop Parente of the Curia.


 O God who, by the merits and teaching
Of Blessed Dominic Thy Confessor,
hast been pleased to enlighten Thy Church:
grant that through his prayers
she may not be deprived of temporal help,
and may continually advance in spiritual growth.


THE POPES SPEAK, posted 24 Jan 2010 at 11:57 UTC by badvogato » (Master)

p56. In his encyclical Mirari vos (1832), Pope Gregory XVI warned against the danger of indifferentism...
The Pope went on to explain that:

...Ah, 'What more disastrous death for souls than the liberty of error," said St. Augustine. In seeing thus removal from men of every restraint capable of keeping them on the paths of truth, led as they already are to their ruin by a natural inclination to evil, We state in truth that the pit of hell is opened from which St. John depicted a smoke which obscured the sun and from which locusts emerged to devastate the earth. This is the cause of the lack of intellectual stability; this is the cause of the continually increasing corruption of young people; this is what causes people to despise sacred rights, the most holy objects and laws. This is the cause, in a word, of the most deadly flail which could ravage states; for experience proves, and the most remote antiquity teaches us, that in order to bring about the destruction of the richest, the most powerful, the most glorious, and the most flourishing states, nothing is necessary beyond unrestricted liberty of opinion, that freedom of public expression, that infatuation with novelty.
In the second half of the twentieth century, the absolute liberty of expression condemned by Pope Gregory XVI has been elevated to the status of the supreme good in the so-called free countries, and the result is turning out to be exactly what he predicted. If Western civilization is destroyed it will have been from within, not from without.

structures of experience, posted 24 Jan 2010 at 13:20 UTC by badvogato » (Master)

Essays on the Affinity between Philosophy and Literature by Richard Kuhns

p255.
III
If the world exists as a text ( e.g. Papal encyclical & Chairman Mao's Redbook), what becomes of me ? ( Catholic Christian & Chairman Mao's communist). Both philosophical analysis of language, as worked out in the Tractatus, and poetic analysis of language as explored by Valery stress the critical issue of the self. What has language to do with the 'I' of experience and consciousness when it is used to speak about the world and about experience? Explaining the way the self, subject, or 'I' participates in and defines experience is a problem to which both Wittgenstein and Valery gave thought. Responding to this interest, Wittgenstein interrupts the logical inquiry of the Tractatus with this assertion:

5.632 The subject does not belong to the world: rather, it is a limit of the world.

As the eye does not see itself, and nothing in the visual field demonstrate that it is seen by the eye, so the 'I' of consciousness is not an object of consciousness. The only way the self legitimately gets into philsophy is through the notion of 'the world' for

5.641 What brings the self into philosophy is the fact that 'the world is my world.'

The philosophical self is not the human being, the human body, or the human soul, with which psychology deals, but rather the metaphysical subject, the limit of the world - not a part of it.

Wittgenstein's effort to define a concept, 'the philosophical self,' to be distinguished from 'the psychological self' and presumably other interpretations of 'self,' introduces a philosophical theme essential to his interpretation of experience. The self is the limit of my world, and my world is an interconnected series of linguistic events; therefore, the whole issue of the self falls outside philosophy, into that realm of the 'unutterable' to which the Tractatus consigns the most important questions insofar as they have to do with our moral, aesthetic, and religious values. As we might expect, values fall outside the philosophical world too.

6.4 All propositions are of equal value.

6.41 The sense of the world must lie outside the world. In the world everything is as it is, and everything happens as it does happen: in it no value exists - and if it did, it would have no value.

If there is any value that does have value, it must lie outside the whole sphere of what happens and is the case. For all that happens and is the case is accidental....

6.374 Even if all that we wish for were to happen, still this would only be a favor granted by fate, so to speak: for there is no logical connexion between the will and the world, which would guarantee it, and the supposed physical connexion itself is surely not something that we could will.

6.43 If good or bad acts of will do alter the world, it can only be the limits of the world that they alter, not the facts, not what can be expressed by means of language.

The world of the happy man is a different one from that of the unhappy man. ..

The poetic interpretation of language temperamentally closest to Wittgenstein's is that of Paul Valery, whose interest in a poetic theory of linguistic objectivism I have already alluded to. It will be useful at this point once again to consider Valery's conception of language, for here a sense of the self analogous to Wittgenstein's is explored.

... the poetic state or emotion seems to me to consist in a dawning perception, a tendency toward perceiving a world, or complete system of relations, in which beings, things, events, and acts, although they may resemble, each to each, those which fill and form the tangible world - the immediate world from which they are borrowed - stand, however, in an indefinable, but wonderfully accurate, relationship to the modes and laws of our general sensibility. So, the value of these well-known objects and beings is in some way altered. They respond to each other and combine quite otherwise than in ordinary conditions. They become - if you will allow the expression - musicalized somehow commensurable, echoing each other. the poetic universe defined in this way bears a strong analogy to the universe of dream.


Dream Lover, Surreal Union



情不知所起,一往而深. 生者可以死,死可以生, 生而不可与死,死而不可复生者, 皆非情之至也. 梦中之情,何必非真,天下岂少梦中人耶? - 牧丹亭

Dream Lover - 梦缘? 

Adoration knows not how and when it is seeded. Once it sprouts it has a life of its own and knows no bounds Living is dead, dead is so alive. If what lives can not accompany what is dead, and what is dead can not reseed and do loving thee both have not reached the fullness of one cosmic breath

Lovers of the dream, why it has to be not real? it is not like this world is devoid of dreamers, so why not? ( dwell on what you have and have not? )

Being Chinese vs Being Human vs Being Catholic, posted 25 Jan 2010 at 16:49 UTC by stuart » (Journeyer)

You sent me this link on Advogato via Linked In. Apparently all the above verbiage comes down to the question you enclosed: "Why the requirement of celibacy for ordained Catholic church priest is NOT a violation of human rights yet the one-child policy promoted by Chinese government to its citizenship is a violation of human rights? what differed exactly?"

**

Answer: Its not mandatory to be a Catholic priest. If you don't want to be celibate get out of the clergy of this denomination of Christianity.

By corollary, I'd be hard pressed to see you shed your Chinese DNA or your status as female.

S.

Chinese citizen = Chinese DNA? , posted 25 Jan 2010 at 20:07 UTC by sye » (Journeyer)

It is NOT mandatory to be a Chinese citizen. Japan Parliament is considering to extend voting rights to Korean Japanese.

Chinese government promote 1 child policy. You can have as many children as you want but they won't get into public school/ government job etc...

s.

'Celebacy' by E. Schillebeeckx, O.P., posted 26 Jan 2010 at 04:52 UTC by badvogato » (Master)

Translated by C.A.L.Jarrott

An excerpt scribed by nobody's fingers

Celibacy & Mariaology, posted 26 Jan 2010 at 11:42 UTC by sye » (Journeyer)

Celibacy & Mariaology are two beacons upholding the institution of marriage. Without the inner working of such logic, 'marriage' reduced to a fucking matter within man-made law.


 如彼拱门 此桩婚姻


如彼拱门 横空似练 磐石叠立 一门洞天 以物喻理 理在其间 时不逝兮 内展穹天

如彼拱门 俩弱成强 相依偎兮 双坠弥坚 浪迹之侣 终成眷属 宣彼神迹 彰其美意

有念如斯 当无大谬 独强难存 天理如斯 我日垒石 盼伊相随 无你之空 如厦无顶 无获爱吻 吾乃鄙夫 相濡以沫 在彼深渊 无私相爱 我为卿狂 纵身跃下 永结连理

Most Like an Arch This Marriage by John Ciardi

Most like an arch – an entrance which upholds and shores the stone-crush up the air like lace. Mass made idea, and idea held in place. A lock of time. Inside half-heaven unfolds.

Most like an arch – two weaknesses that lean into a strength. Two fallings become firm. Two joined abeyances become a term naming the fact that teaches fact to mean.

Not quite that? Not much less. World as it is, what’s strong and separate falters. All I do at piling stone on stone apart from you is roofless around nothing. Till we kiss

I am no more than upright and unset. It is by falling in and in we make the all-bearing point, for one another’s sake, in faultless falling, raised by our own weight.

State of the Union, posted 28 Jan 2010 at 14:48 UTC by sye » (Journeyer)

watched Obama's State of the Union address and Virginia governor's speech last night. Inspired by both leaders American opportunistic vision. Also media 'pundit', Shields and Brooks said, 'we take Obama's 'media pundit' remark personally'. That is the true spirit in 'the lightness of being'

Here's my two cents in regards of this 'State of the Union'

1. Marriage is NOT A GAY matter. It is a 'grave' matter and a spiritual one.

2. Support Obama's initiative of allowing proud gay Americans to serve in our armed forces, under the condition that GAY COUPLE or GAY THREESOME must BOTH and ALL apply and serve if qualified.

Gold & Gupta "option to change senate rules...", posted 1 Feb 2010 at 19:42 UTC by badvogato » (Master)

overcome the filibuster

um, posted 1 Feb 2010 at 19:42 UTC by stuart » (Journeyer)

Notwithstanding all the other unrelated verbiage, the statement that "It is NOT mandatory to be a Chinese citizen. Japan Parliament is considering to extend voting rights to Korean Japanese. Chinese government promote 1 child policy. You can have as many children as you want but they won't get into public school/ government job etc..."

1. begs the question of Human rights in China relative to ones elective choice to be a member of the clergy of a given religion on the topic of celibacy. 2. moreover has neither substantiation or relevance to any aspect of moral considerations of the one-child policy, whether in Korea or otherwise.

Your rebuttal was in reference to your statement that since it is unfair for a Catholic priest to marry, why is this any different than a human rights violation by China with regard to the one-child policy.

The interjection about the State of the Union on Gay marriage relative to the assertion that it is somehow "grave" and spiritual is meaningless and otherwise without context.

The assertion that any party to a Gay social commitment must make a concurrent commitment to serve in the military if one elects to do so is as pointless as it is ridiculous, not to mention having no relevance to the original topic. Does the wife in a heterosexual couple serve in the military if the husband enlists?

Marriage is a religious institution with a religious definition. The state is foreclosed from upholding matters of religion in the balance between church and state. The real problem is that U.S. Government and the state governments downstream recognize, support, authorize, or otherwise license the act in any way relative to any special benefits that the law allows or disallows.

choose the lesser evil, posted 1 Feb 2010 at 19:55 UTC by sye » (Journeyer)

mandatory military service vs. promotion of gay men in armed forces

I'd vote for mandatory military service plan. unpopular but bypassing gay, not gay arguments.

Lawrence Lessig's response to the Democrats' Response, posted 17 Feb 2010 at 15:11 UTC by badvogato » (Master)

Not (Even Close to) Good Enough

I haven't got the slightest idea where the truth lies. I'll seek help from other able interpreters.

NJ eGov helpdesk, posted 9 Mar 2010 at 20:14 UTC by badvogato » (Master)

I am writing this memo 'A blonde joke' at work for circulation among non-union members. Will I be in trouble?

"I was offering many critiques on the qualities of the boss at work, my Italo Calvino lover interrupted me. 'Italians don't need to be qualified for anything. As long as you know he is Italian, treat him like he is the boss and you'll have a happy chap to repeat orders faithfully till his last breath."

I lamented, 'Oh, no wonder they are changing the rule on the fly. Now I need to be 60 of age, instead of 55 to make my dream come true.'

'What is your dream?'

'Whip smart, pro dominatrix'

'That's it! You can apply for the leading role in hollywood horror film. You can be the next precious supporting actress'

'Butt...but, I am afraid the official reward was granted along the line of 'May our troops come home safe!'

Questions for April 15 class & books , posted 26 Mar 2010 at 19:21 UTC by badvogato » (Master)

I. We have briefly discussed various perspectives on interpreting the Constitution. These include (1) originalism (faithfulness to the original or intent of the Constitution); (2) the moral reading of the Constitution (stressing the Constitution's borader principles that each generation must apply in its own way to arrive at the best possible decisions); (3) majritarianism (deference to the judgement of law making bodies unless their actions clearly violate the Constitution); (4) democracy reinforcement (stresses that the Court is not to review substantive law for rationality but must assure that the democratic process is working well and gives minorities and disfavored groups the ability to influence the elective process); (5) minimalism ( a preference for opinions that are narrow and fact (as opposed to theory) driven; (6) pragmatism ( a willingness to consider the consequences of the Court's decisions as an important factor in the Court's decisions); (7) principled decision making ( a preference for the development of clear rules that allow constitutional laaw to be as objective and predictable as possible).

Questions: (a) Which of these perspectives would you find most congenial if you were on the court?

(b) Which, if any, of these perspectives do you believe complement each other and which, if any, are antagonistic to each other?

(c)Which of these perspectives would have best accommodated a different result in the DeShaney v. Winneago County case? (That was the case in which a majority of the Court held that the liberty interest in the Fourteenth Amendment's Due Process clause does not impose a duty on governmental actors to protect private citizens from harming each other when the government itself has not contributed to causing the danger)

II. To what extent should Justices deem themselves to be bound by precedent in interpreting constitutional law?

III. Do you believe that there is a constitutional right of same sex marriage protected by the Fourteenth Amendment's equal protection clause or some other provision of the Constitution? Do you believe that this is a case in which the Court should apply strict scrutiny? Let's assume that you conclude that there is such a right, are there any factors that might militate against your finding in favor of such a right?

----------------------------------------------------
Books recommended and circulated during the class on March 24th


1. Carol Berkin "A Briliant Solution" 2002
2. David M. O'Brien 'Storm Center' 6th edition 1986;...;2003
3. John Hart Ely "Democracy and Distrust" A theory of Judicial Review 1980.
4. John V. Orth "Due Process of Law" 2003
5. Leonard W. Levy "Origins of the Bill of Rights" 1999;...;2001
6. Lynne Curry "The DeShaney case" 2007
7. Charles L. Black Jr. "Structure and relationship in Constitutional Law" 
8. Jeffrey Rosen "The most democratic branch, how the courts serve America" 

The best X is a dead X, posted 10 Apr 2010 at 15:09 UTC by badvogato » (Master)


Proposition:
The best X is a dead X.


donnalee: X = boss. 1 other concurred. other options: X = dog ; can’t be right. { ‘General Cao’s dog’ on your Chinese take-out menu is probably an exception } X = god ; reality shows it. godhead friedrich nietzsche proclaims it. X = Protestant Justice on US Supreme Court; TO BE TRUE SOONER THAN WE KNOW.

more...

edited by Jack N. Rakove, posted 11 Apr 2010 at 21:15 UTC by badvogato » (Master)

almost finished 'The annotated U.S. Constitution and declaration of independence" edited by Jack N. Rakove. Sent a copy of his other book 'Original Meanings: Politics and Ideas in the Making of the Constitution ' to Peter for his presumably failed campaign to be elected as the Mascot of Flippin high school in AK.

draft of my answers to assignment , posted 12 Apr 2010 at 22:45 UTC by badvogato » (Master)

Assigned homework Questions of "The Future of Constitution" lectured by Walter M. Frank

DeShanney v. Winnebago County

I.
Questions:
(a) Which of these perspectives would you find most congenial if you were on the court?

Principled decision making (7) and Moral reading (2)

(b) Which, if any, of these perspectives do you believe complement each other and which, if any, are antagonistic to each other?

Principled decision-making and Moral reading are compatible. Declaration of Independence by Thomas Jefferson was written more or less from those two perspectives.

Originalism, Pragmatism were exercised by James Madison in the writing of Constitution in 1787.

Majoritarianism, Democracy reinforcement were not applicable before 1787. They are antagonistic to four of my preferred perspectives, namely principle-decision making, moral reading, originalism and pragmatism. Minimalism complements preferred four perspectives if exercising preferred four isn't enough

(c) Which of these perspectives would have best accommodated a different result in the DeShaney v. Winneago County Case?

Answer:
None. DeShaney case is a perfect example that shows limits of justice.

No law CAN guarantee liberty nor claims to life. No law CAN replace
actions exercised in full faith and force by a free and righteous man.
Only a free and righteous man CAN save life and preserve humanity for
ALL that comes after him.

II. To what extent should Justice deem themselves to be bound by precedent in interpreting Constitutional Law?

To the extent that precedent in the light of case re-examined is agreeable to their religious views, their personal conscience and their moral defense in the name of People of United States.

III. Do you believe that there is a constitutional right of same sex marriage protected by the 14th Amendment's equal protection clause or some other provision of the Constitution? Do you believe that this is a case in which the Court should apply strict scrutiny? Let's asssume that you conclude that there is such a right, are there any factors that might militate against your finding in favor of such a right?

No, I do NOT believe there is a right of same sex marriage protection.
No, I believe it is MOST ridiculous that ANY constitution of a nation
should be bothered by sex orientation of individuals.

If there is such a right to equal protection of same sex marriage, I shall propose that procreation of human race be done without human love and human intercourse and human sacrifice as I've known it from my cultural heritage whatsoever.

under "the equal protection" clause , posted 16 Apr 2010 at 18:35 UTC by sye » (Journeyer)

If I need to provide rationale to support the same sex marriage under the equal protection clause in the existing 14th US Constitutional Amendments 14th, the best I've come up with is this.

1. Divorce is permissible anywhere in US for traditional marriage.

2. For a woman abused, neglected, threatened by her husband, she has the right to seek protection from government to grant a divorce.

3. For a single gay man or lesbian woman, that unloving single status is perceived as 'abusive, negligence and cruel' once he or she fell in love with another person. She has the equal right to seek protection from government to grant a divorce from that single unloving state of being and into a union/loving relationship with another beloved person.

4. If gay bashing has never been a US cultural taboos in the past, no lesbian/gay persons will have this fear from the general public and the government agencies.

Therefore, it is conceivable, for the best interest of ALL People, US Supreme Court should stay away from arguing 'the equal protection' as a disguise of promoting gay marriage unless it is clear WHAT is at stake and WHAT need to be protected from abuse and extinction on both ends of human emotional scales.

'The Revival of the eleventh Amendment', posted 16 Apr 2010 at 19:58 UTC by badvogato » (Master)

from 'ChoperYoo-Web.pdf'

'It has been accurately said that the Eleventh Amendment and state sovereign immunity create "a Byzantine aggregation of rules and doctrines." recent decisions have created a "maze of precedents that only a specialist could navigate with confidence." This Part seeks to describe the recent cases that have created this muddle, beginning with Seminole Tribe v. Florida, decided in 1996, and ending with Tennessee v. Lane, decided in 2004. Throughout, there has been a trend toward reinvigorating state sovereign immunity, but repeated concessions have also made clear that the federal government retains significant ways to achieve its ends.

The Constitution's recognition of state sovereign immunity, of course, did not originate with the Rehnquist Court, but with the Eleventh Amendment in 1798...

why Health Care should be deemed MOST important as a federal initiative instead of State ?

10 points to remember from Mr. Frank, posted 16 Apr 2010 at 21:33 UTC by badvogato » (Master)

1. Constitution is a document. Constitutional Law is the application of the document to cases and controversies; the national judiciary is only empowered to hear cases and controversies; it does not give advice. (i.e. Jefferson and Washington once asked Chief Justice for some treaty advice and was denied such request)

2. Constitutional Law asks the same question in many different ways and in many different contexts: Has the Government acted within the Constitution?

3. These questions are not easily answered for many reasons - foremost among them are (1) it is an old document, often being applied to situations never envisioned; (2) phrases like 'privileges and immunities" "due process" and "equal protection" are capable of many meanings; (3) there are built in tensions within the document - for example, there is a tension between the right to a fair trial and freedom of the press; (4) there are fundamentally different approaches to interpreting the Constitution, reflecting to some degree differences in values of Justices and even different understandings of the purpose of the Constitution.

4. The Court has no power to declare state acts or laws unconstitutional unless they violate the U.S. Constitution.

5. When the Constitution declares something unconstitutional, it creates a national constitutional rule binding on all the States.

6. The Court has neither the power of the purse nor the power of the sword.

7. The Court has two primary tasks: (1) adjudicating questions of individual rights and (2) overseeing the constitutional structure. The first task involves the application of the Bill of Rights and the Fourteenth Amendment to particular cases; the second task involves the Court in assuring that principles such as separation of powers and federalism are properly adhered to and in defining the scope of national power.

8. The Constitution does not specifically provide for a right in the Supreme Court to declare acts of Congress or the State unconstitutional. The Court under Justice Marshall asserted this right, first in the famous case of Marbury v. Madison, later in the case of Martin v. Hunter's Lessee. Moreover, Congress has the authority, under the Constitution, to limit the Supreme Court's appellate jurisdiction.

9. 5 to 4 decisions are not unusual and indeed some of the Court's most important decisions, including the Slaughterhouse cases, Lochner v. New York, the Gold Clause cases, and Miranda v. Arizona, have been decided by 5 to 4.

10. Nevertheless, in the last decade, the number of five to four decisions has reached epidemic proportions. More than 50 important constitutional law decisions have been decided in the last decade by a five to four vote; most of those decisions have pitted a liberal faction versus a conservative faction, with either Justice Kennedy or Justice O'Connor providing the swing vote or votes. Whoever gets to pick Justice Kennedy's successor might well decide the future direction of constitutional law for the next fifteen or twenty years.

Joe's TEA Act vs. Lewis 'Bill of no Rights', posted 10 May 2010 at 15:58 UTC by badvogato » (Master)

But Joe, having quickly lost support from Chuck Schumer, has literally named this affront to the Constitution the "Terrorist Expatriation Act" -- or, "the TEA Act." Hey, I wonder which reactionary white populists he's looking to appeal to with a name like that?

Alice, is white Queen or Red Queen afraid of the TEA party?

Seriously, what Joe needs to do is to start a third Party representing 'Terrorist Expatriation Army' in support of Lewis 'The Bill of No rights'

Frank Askin 'Defending Rights', posted 9 Jun 2010 at 14:33 UTC by badvogato » (Master)

A life in Law and Politics

First Thing, posted 16 Jul 2011 at 01:30 UTC by badvogato » (Master)

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

http://www.firstthings.com/onthesquare/2011/07/the-politics-of-the-family-and-the-lies-our-culture-tells

from American Interest, posted 21 Jul 2011 at 22:40 UTC by badvogato » (Master)

http://blogs.the-american-interest.com/contd/2011/07/08/prison-hulks-and-al-shabab-the-complications-of-the-law-of-war/

by Ruth Wedgwood
Ruth Wedgwood is the Burling professor of international law at Johns Hopkins School of Advanced International Studies, and a member of the Hoover Institution Task Force on Law and National Security.

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