Published: Wednesday, June 12 2013 12:00 a.m. MDT
I have enjoyed Davis' two editorials that I have read so far. It is
refreshing to read examined thoughts. I think the answer is to
expose ALL higher court decisions to more scrutiny by the literate public. The
problem is that our own local courts seem very eager to invoke gags to stop
speech and access to documents regarding their own processes. This may be
further tested in this blogging age. However, since I have been
reading more SCOTUS opinions, I have acquired a degree of respect for their
analysis, even when I disagree or they seem to miss a key piece of logic.I have also acquired a measure of respect for our own Utah Supreme Court
by regularly reading their opinions. Unfortunately, the same cannot be said
regarding my study of the opinions issued by our Court of Appeals.
1857 Dred Scott Scott, an African-American slave, had asked a United
States Circuit Court to award him his freedom because he and his master had
resided in a state (Illinois) and a territory (Wisconsin Territory) where
slavery had been banned. Chief Justice Roger Taney, writing for the court, held
that Scott, as a person of African ancestry, was not a citizen of the United
States and therefore had no right to sue in federal court. This holding was
contrary to the practice of numerous states at the time, particularly Free
states, where free blacks did in fact enjoy the rights of citizens, such as the
right to vote and hold public office. In what is sometimes considered mere
obiter dictum, the Court went on to hold that Congress had no authority to
prohibit slavery in federal territories because slaves are personal property and
the Fifth Amendment to the Constitution protects property owners against
deprivation of their property without due process of law.
Citizens United may be part of the reason for any loss of confidence. Majority rule is nothing more than mob rule and if it violates the rights of
others then it should not be considered in any rulings; just because the
majority thinks one way doesn't necessarily make it the right way.
Then what is Prof. Davis' solution or alternative? Have judges elected?
Require regular voter approval to retain their office? Put issues up for a
popular referendum? The Founding Fathers were virtually unanimous in the
absolute importance of an independent judiciary. Though it is impossible to be
completely objective and unbias, I trust the judges, who are experts on the
Constitution, rights and the law, over the whims of the general public with
little knowledge and education in those areas. The Court has made very unpopular
decisions throughout its history. That alone shows that they rule exclusively on
a law's constitutionality instead of popular opinion and have less bias
than the general public.
I also agree with Mountanman. But... I lost faith years in SCOTUS years ago
when they ruled on abortion telling us it falls under right to privacy. I
suppose what that actually means is... you can dispatch anyone provided you do
it in the privacy of your bedroom.
@Mountanman"The effort to defund Planned Parenthood was voted down in
the Senate by a 58-42 vote. "Planned Parenthood does things
other than abortions. Their funding goes to their other services.
Who cares? That must be why SCOTUS judges are not elected!Those
Founding Fathers must have known something that Mr. Davis missed.
The Supreme court has swung now to an activist court with justices who can only
vote a predictable way. Confidence in the court to rule based on the
constitution with no political flavoring - no? None. Add to that list other
federal govt agencies and institutions including congress, the IRS , the State
dept, and on and on... You have corruption as never before and it just so
happens to have exploding under guess who.... Barack Obama. No surprise here.
@wrz --"I suppose what that actually means is... you can
dispatch anyone provided you do it in the privacy of your bedroom."It actually means that women have the right to control their own bodies.If men could get pregnant, abortion would have been legal and
universally accepted millenia ago.I am looking forward to the day of
artificial gestators. Then we'll see how many men really want to take care
of and raise all those babies that could be saved by technology.Restrictions on abortion sound a LOT more appealing when you're not the
one who has to suffer the consequences.
I have often wondered what the Obama Administration had on Chief Justice John
Roberts to blackmail him into the awful decision on ObamaCare. After all, the
basis for his opinion wasn't even argued by the Government attorney's.
With all the corruption we have seen come out of Obama's Administration
the blackmail makes sense.
Roland,The constitutionality of slavery was never explicitly
acknowledged until the Dred Scot decision in 1857. Until that time, it was
simply and implicit right. The Dred Scot decision formalized slavery into
constitutional law. Clearly, Mr. Davis could not give a more detailed
description in an editorial, nor would he be expected to. I understood what he
meant as would most people familiar with the history of slavery and the law.Mountanman,The government has always been able to call
whatever they want a tax and thus, be within constitutional bounds to do so.
The ACA ruiling didn't pull that one out of a hat. It has been an explicit
principle of the Constitution since it was ratified. It is in fact, one of the
few explicitly mentioned powers of government. The Court's purpose is to
declare a law constitutional if it can be. One of the government's
arguments was in fact that the ACA's individual mandate was a tax. It was
not their primary argument, but it was argued. The Court acted as it was
supposed to be; interpreting the law on its face, not on its popularity.
@RanchHandHuntsville, UTCitizens United may be part of the
reason for any loss of confidence. 12:57 p.m. June 12, 2013[Agreed - the worst SCOTUS decision in years! With upholding Bush's
Patriot Act as a neck and neck 2nd, and Selecting Bush back in 2000 a
distant 3rd.]@pragmatistferlifesalt lake city, utahSo Mtm you were ok with Roe v Wade?7:36 a.m. June 12, 2013[Voted BEST come back of the day, month, and so far this year! haha]
Citizens United stands front and center as one recent reason people have lost
confidence in the Supreme Court.In a 5-4 decision, the U.S. Supreme
Court ruled that corporations and unions have the same political speech rights
as individuals under the First Amendment. It found no compelling government
interest for prohibiting corporations and unions from using their general
treasury funds to make election-related independent expenditures. Thus, it
struck down a federal law banning this practice and also overruled two of its
prior decisions. Additionally, in an 8-1 decision, the Court ruled that the
disclaimer and disclosure requirements associated with electioneering
communications are constitutional.Perhaps "the most blinkered
sentence in the opinion was surely Kennedy’s sonorous prediction that the
“appearance of influence or access” by corporations on the political
process “will not cause the electorate to lose faith in our
democracy.”(Jeffrey Rosen, Politico)
the abortion debate going on here is a bit of a non sequitur, and the leaps to
try and connect the dots are fraught with logical fallacies (public funding for
abortions is illegal since 1970, but Planned Parenthood, the #1 abortion
provider receives public funds, therefore abortions MUST paid for by public
funds). So drop it, it's not germane to the subject of the article.
Citizens and the DNA cases are far worse than Obamacare or Roe v. Wade to the
civil liberties of America.
Just because something is legal does not make it right. Slavery was legal at one
I have no problem with same sex couples forming unions with all the privilage of
marriage. Just coin another word. Marriage is already taken. It is a union of
a man and woman.
@Hutterite:"The inscription on the building in the photo says
'Equal Justice Under Law.' Protecting those of the same gender who
want to get married seems to fit the description nicely."If that
be the case it should also protect those who prefer myriads of other marriage
aberrations such as polygamy, minors, sibs, groups, etc.
@wrz --"If that be the case it should also protect those who
prefer myriads of other marriage aberrations such as polygamy, minors, sibs,
groups, etc."It does. "Equal Protection"
means that **everyone's** civil liberties are protected AS LONG AS they
don't harm anyone else. This applies to EVERYONE.Public safety
has always been a valid legal reason for limiting personal freedoms.Polygamy is known to convey serious risks to women and children -- and courts
recognize these risks, as I've shown in previous discussions.Likewise, incest and child marriage harm children.There is no
inequality here. It is the EQUAL application of legal and moral principles --
especially "first do no harm" -- that declare these other forms of
marriage to be unacceptable.
Court cases are not judged on law, but on party affiliation; otherwise we would
not have 5/4 decisions. Even the most ignorant among us knows that the most
"learned" judges in America should know the law and that they should be
able to apply the law. It is impossible to have 5/4 decisions that follow
"party lines" unless those judges are incapable of fulfilling their
duties. Only a judge who can be bought would "sell" his vote to the
political party that appointed him to the bench; but, that is exactly what
history has shown has happened.Why even claim that the Court uses
the Constitution as the "steel rule" against which they measure
"justice"? Why not just let political parties tell us what
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