"Strict Constructionist"

[BioCatholic]

now i hear all the time from conservatives they want a "STRICT constructionist" judge on the SCOTUS, and not "activist" judges. however, these same people applauded the recent decision to prevent the execution of juveniles. execution itself is NOT considered cruel and unusual by STRICT APPLICATION of the Constitition.

with respect to interpretation of the constitution, STRICT means the application of the FRAMER'S INTENT basically. back in the 1780's, execution of juveniles was NOT considered cruel and unsusual.

how much more activist can you get by ignoring the framer's intent, and applying international law over original text as stevens did?

NOW the SCOTUS has original jurisdiction in admiralty, and issues where a state is a party, AND may apply laws or provisions "in which the United States has entered into treaty with a Foreign Nation..." However, original text in the constitution is by far the most weighted factor (as well as other court decisions and precedent).

so does the term "activist judge" only apply when conservatives dont like the decision?

why are people working so hard to overturn Roe v wade when it was Griswold vs Connecticuit that affirmed that just because a right is not listed in the constitution, it doesnt exist? Roe v wade is the APPLICATION of Griswold vs Connecticuit.

why not try to overturn that one, and let states keep a watchful eye in your bedroom and make sure you dont use contraceptives?

the same hold true for Loving vs Virginia, which eliminated bans on interracial marriage. the court held that marriage was a fundamental right, and that "equal protection" applied to couples seeking marriage regardless of race.

why are people not seeking to overturn the Loving vs Virginia decision, and then place back bans on interracial marriage? overturning that decision will most definitely lead to the overturning of Roe v Wade because it will reaffirm rights not listed in the Constitution are not guaranteed.

STRICT APPLICATION of "due process" and "compelling interest" clauses in the constitution means that the state must have an absolute necessity to intrude on personal liberty and personal property. hence, the state has no real "compelling interest" to intrude into the bedroom of a couple to regulate what they do sexually (providing they both are of consenting age).

my opinion is that people are asking for a "conservatively activist judge"

[JimG]

Activist rulings arise when people become too lazy or impatient of passing their agendas legislatively, and want to take the shortcut through the court. Unfortunately it has the effect of politicizing the court as well as the confirmation process.

And the Court makes it worse by taking some of the cases, when it could have simply said: "The Constitution has nothing to say about this. It's a matter for the legislatures."

[Digitonomy]

Originally Posted by JimG

And the Court makes it worse by taking some of the cases, when it could have simply said: "The Constitution has nothing to say about this. It's a matter for the legislatures."

Please provide some examples where this is true. The Supreme Court is an appeals court. As such, it usually hears cases which involve conflicts between different federal courts. Not hearing a case simply allows the previous court ruling to be the final word. But that was usually the ruling of a federal rather than state court.

[JimG]

Originally Posted by Digitonomy

Please provide some examples where this is true. The Supreme Court is an appeals court. As such, it usually hears cases which involve conflicts between different federal courts. Not hearing a case simply allows the previous court ruling to be the final word. But that was usually the ruling of a federal rather than state court.

Well, the case the immediately comes to mind is Roe v Wade. The Constitution has nothing to say about the legality of abortion. In its attempt to make it say something about the matter, the ruling ended up being poorly based in either constitutional law or precedent. It ended up reading like something a legislature might haver written as a bad compromise.

But probably the same thing happens with other appelate courts. The court may decide something in the absence of a controlling law simply because it believes that as an appellate court, it must decide. But really, it should only decide when there is a definite statute or constitutional issue at hand. Every aspect of our lives is not controlled by law; and if no law applies, the court should refuse to decide.

[Digitonomy]

Originally Posted by JimG

Well, the case the immediately comes to mind is Roe v Wade.... if no law applies, the court should refuse to decide.

As I said, failing to hear a case, or failing to reach a majority decision, merely leaves the previous decision intact. In Roe, this means that regarding the Texas anti-abortion laws,

the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights

The only difference is that the voiding of anti-abortion law would only apply to that court's district, rather than the whole country.

You can argue back and forth about whether a particular federal court should have heard any given case, but they do, and when there are discrepancies in how courts apply federal law, it should be resolved. If that doesn't happen beforehand, it's the job of the Supreme Court.

[Hildebrand]

Originally Posted by BioCatholic

why not try to overturn that one, and let states keep a watchful eye in your bedroom and make sure you dont use contraceptives?

"Watchful eye in your bedroom" Great Drama. I love your sense of humor.

No state would pass laws making it illegal to buy contraceptives. Even the "most conservative" legislator out there, Rick Santorum, is not for that.

There maybe laws against selling them to kids without parental approval, but there are laws out there that make it illegal for teens to get a tan at a tanning salon, tattoos, piecing, etc without parental approval.

[JimG]

Originally Posted by Hildebrand[size=2

There may be laws against selling them to kids without parental approval, but there are laws out there that make it illegal for teens to get a tan at a tanning salon, tattoos, piecing, etc without parental approval.[/size]

Yes, many products are regulated in some way by the State. Are contraceptives and morning-after pills a constitutional issue, but not aspirin, tanning salons, and piercings?

[JimG]

Originally Posted by Digitonomy

As I said, failing to hear a case, or failing to reach a majority decision, merely leaves the previous decision intact. In Roe, this means that regarding the Texas anti-abortion laws,

The only difference is that the voiding of anti-abortion law would only apply to that court's district, rather than the whole country.

Yes, if SCOTUS had refused to hear the case, the Texas court's decision would stand. So what we ended up with was a misapplication of constitutional law to the entire country rather than only the state of Texas.

I would argue that the Texas court should have simply pointed out that the Constitution has nothing to say about abortion and referred the case back to the litigants and the legislature.

When the courts, especially SCOTUS, involve themselves in such social issues, they take what should be legislative matters "off the table." That leaves no room for public debate and legislation, and forces the controversy into the only place it can go--the court confirmation process.

[Angainor]

Originally Posted by BioCatholic

the same hold true for Loving vs Virginia, which eliminated bans on interracial marriage. the court held that marriage was a fundamental right, and that "equal protection" applied to couples seeking marriage regardless of race.

But that is in the Constitution. 14th Amendment. People are given equal protection under the law. If I can marry a woman another man can't, that is unequal, regardless if marriage is considered to be a legal right.

Before anyone asks, no this does not apply to same-sex "marriage". No man can marry another man. No woman can marry another woman. Everyone is treated equally under the law.