Buffman

ybnormal

I am not so sure that folks are missing the big picture. The fact that this topic was presented indicates an awareness of just how critical it has become for the Supreme Court to apply secular, rather than religious, legal interpretations to our Constitution and Amendments.

Naturally, this runs the gamut of federally appointed legal positions. I find myself deeply concerned that what happened to the Supreme Court In Alabama could happen to the Supreme Court in Washington. What if John Ashcroft were to replace Rehnquist as Chief Justice and Roy Moore was appointed to replace Kennedy or O'Conner? Concerns about C-SS would be of very limited consequence without a major social upheaval being the product of anti-separation rulings. But we have already seen that anti-separation rulings have caused no significant "mass" outcry from the minorities. Why not? Why was C-SS such a major issue among the theists during the creation period of our Constitution but no longer? (It certainly wasn't successfully championed by any massive group of non-theists.)

hezekiah jones

?!?!?

If anything, Scalia is the most meanspirited Justice in recent memory, continually showering lower courts, legislatures, and especially his own colleagues with bitter and sarcastic invective. In this sense, Scalia is a disgrace, and his style is an utter betrayal to what appears to be the clarity of his own legal thinking. It's a shame.

The problem with "originalism" or "textualism" or whatever political conservatives are calling their so-called "method" these days is that it completely lends itself to abuse on purely agenda-driven, ideological grounds. When are you and your Federalist Society colleagues going to get that through your heads? Have you all forgotten about Ed Meese already? Have you not read Ronald Dworkin's illumination of the utter fraud "textualism" represents, in his critiques of both the Bork and Thomas nomination hearings? Liars, especially Thomas, the man Bush 41 claimed was the most suitable candidate in America for a seat on the SCOTUS bench.

The Federalist Society is not fooling anyone anymore.

Layman

Textualism applies to statutory law. Originalism applies to Constitutional law and to statutory law. Scalia is a textualist re: statutory law and an originalist with textualist tendencies when it comes to Constitutional law.

Thomas and Bork are/were originalists for statutory law and Constitutional law.

I can understand your confusion since the law can be somewhat complicated. And, of course, because Scalia's textualism can be described as a form of originalism because he insists on understanding the text in the meaning of the terminology of the time. Again, perhaps to subtle.

I've read/heard/evaluated/argued over many criticisms of originalism and there is one undeniable fact: originalism stresses an objective approach to the law, whereas its liberal alternatives give judges much more license to rove in whatever direction they want to go.

Given a theory that stresses being objective versus ones that indulges the subjective, I'll favor the one that attempts to place at least some restraint on the judges passions.

[ September 24, 2002: Message edited by: Layman ]</p>

Buffman

Bork, Hatch, Meese, Hodel, Reynolds, etc.

"traditional values"

EGADS!

<a href="http://www.fed-soc.org/boardofvisitors.htm" target="_blank">http://www.fed-soc.org/boardofvisitors.htm</a>

[ September 24, 2002: Message edited by: Buffman ]</p>

ybnormal

...I'll favor the one that attempts to place at least some restraint on the judges passions.

Interesting how folks on both sides favor exactly that, yet remain in total opposition to its meaning... which to me, means that with all those words, you're complicating a simple issue while offering the standard opinion.


I can understand your confusion since the law can be somewhat complicated.

Change the word "law" to "bible" and we've all been there, done that... I don't have to know the law... the only way this issue has something to do with the law, is like I said, you folks have to make it appear that they are abiding by the Constitution, while they search for some way to get around it.

One thing I can agree with you on tho, is that there is no need for a witch-hunt for these religious believers, because like you say, They have actually been quite upfront about them. The obvious simplicity of that, is exactly what's being argued here.

hezekiah jones

Haha. No need to be patronizing, Mr. Federalist Society.

I'm not confused. The man that is sending these card-carrying Federalist Society judges in front of the Senate Judiciary Committee is confused. Don't you remember Dubya's description of his "favorite" Justice Scalia as a "strict constructionist"?

But in the very book you cited above, Scalia refers to "strict constructionism" as "a degraded doctrine," or something along those lines. (Strict constructionism = textualism, according to Black's 7th ed., btw)

So I think I know who's confused: The Chimp. Precisely the one that shouldn't be confused.

Too subtle for whom?

Textualists are loath to look beyond the plain text of the statute, which is ridiculous. In many instances it simply can't be avoided. I refer you to Scalia's laughable dissent in Edwards v. Aguillard, 482 U.S. 578 (1987). I paraphrase:

"But Senator Keith swore to uphold the Constitution. Senator Keith wouldn't do anything violative of the Constitution now would he? He sincerely believed that what he was doing advanced academic freedom. That's all we have to go by, and we must believe Senator Keith. Never mind that his statements before the Louisiana legislature's education committees were factually incorrect, logically incoherent, and represented a thinly veiled literal reading of the first several chapters of the Christian Bible. Senator Keith was sincere! Come on guys! Just read the Act and forget all that stuff!"

Not exactly originalism's nor textualism's finest moment, I suppose.

Ed Meese. You've forgotten all about Ed Meese haven't you? Lucky you.

Right. Stare decisis, logical reasoning and the rest of that liberal crap. "Degraded doctrines" all.

ybnormal

I am not so sure that folks are missing the big picture.

You are confusing me... I implied the same 'conspiracy' here that I always do, and that I did before, when you said something about the folks here wouldn't accept it... I believed you completely, but I keep it up for several reasons... for one, it's true...

And actually, I get a kick out of it all... half the folks here say the same thing I do in one form or another, but it seems to get passed over, only if it's subtle... ("subtle" is interchangeable with "nice")

Maybe the above post was too subtle... in that it didn't bring on charges of "bigotry", "stereotyping" and implying an "insidiousness", that really is occurring.

And I understand the reason and point of the thread... you are right about what it reflects... and I try not to get in the way of the legal scholars' arguments when I duck in for an "incidious" quickie. They don't mind me... I don't mind them.

Thanks... (and I still intend to get back to you on the other stuff... sorry... been out a lot lately, and I'm sooooooo lazy and easily distracted)

Buffman

ybnormal

(Buffman):I am not so sure that folks are missing the big picture.

You are confusing me... I implied the same 'conspiracy' here that I always do, and that I did before, when you said something about the folks here wouldn't accept it... I believed you completely, but I keep it up for several reasons... for one, it's true...

Perhaps I tend to over compartmentalize without making it clear that that is what I have done/am doing. My comment above was based on the single issue of this string...the appointment of federal judges. I can easily see that I should not have used "big picture" in explaining my very specific thought without some manner of explanation.

I misled you because there is no way you could know that I was only commenting on that single item. Sorry for the confusion. I believe that just about anyone with a modicum of political savvy appreciates how critical federal, for life, appointments truly are. That is the "big picture" to which I was referring. However, though certainly of critical importance to the Christian Nation advocates, it is only a piece of the "Big Picture" about which you have been attempting to highlight.

I, like you, have been observing, tracking and recording a considerable amount of data/evidence on the radical Christian right...and those who have decided to jump on that band wagon. It is only after examining these pieces that I am able to make some of the more definitive statements that I do. I suspect that is also true for your views. My concern is how to make all the data...used to arrive at my positions...available to others in order that they might, hopefully, arrive at similar conclusions. That's why I felt that many of the folks here would not be ready to view what is happening as a Christian "Conspiracy." They are not in possession of my data...or yours...unless we make it available to them. But how can that be done via this mode of communication? Slowly, patiently, bit-by-bit. But what of those folks that already know and understand, perhaps even better than we do, the true nature of the Big Picture? They already realize just how dangerous the collusion between religion and government really is and are seeking ways to immediately introduce corrective actions. (This Sec Web is one of those actions.)

And actually, I get a kick out of it all... half the folks here say the same thing I do in one form or another, but it seems to get passed over, only if it's subtle... ("subtle" is interchangeable with "nice")

Perhaps they do not know what to say or do that might make any significant difference.

Maybe the above post was too subtle... in that it didn't bring on charges of "bigotry", "stereotyping" and implying an "insidiousness", that really is occurring.

Or, maybe, people simply don't have any good suggestions/recommendations/solutions on how to stem the tide. Or just maybe it has been that way since the first Christian set foot ashore and the Constitution has done little more than help to mask the underlying bigotry, stereotyping and insidiousness that this current Christian administration is making eminently clear.

And I understand the reason and point of the thread... you are right about what it reflects... and I try not to get in the way of the legal scholars' arguments when I duck in for an "incidious" quickie. They don't mind me... I don't mind them.

I am very thankful that we have some who willing share their expertise with us. I may not always understand some of the language used, or even the purpose for which they post it; but I do look forward to learning about the legalities of sundry issues/actions. It saves me tons of research. (Time is the enemy.)

Thanks... (and I still intend to get back to you on the other stuff... sorry... been out a lot lately, and I'm sooooooo lazy and easily distracted)

Not a problem here...although I currently have a kidney attempting to give birth to Mt. Etna.

ohwilleke

The trouble is that the "law as it exists" is far more elusive that it would seem. The notion that the role of an appellate judge is to enforce the law as it exists is more myth than reality. Appellate judges routinely have wide flexibility to make law in applying vague precedential and statutory guidelines to particular facts. Ambiguity and not clarity, is the norm. Judges who claim that the law compels them to decide all cases in particular ways are being disingenuous and know better.

How the inherent flexibility involved in judicial decisionmaking is applied has everything to do with the ideology of the person appointed, and that ideology has usually well illustrated by their writing in a position as a law professor.