pat Buchanan has a good piece on judges

[ClearwaterVol]

And that's avoiding the question.

Do you think the Judicial Branch should have the power to do such things? Like Roe v. Wade was policy made from the bench.

I'm your hukleberry.

There are two basic ways to interpret the constitution which both have advantages and disadvantages. You can be an originalist (dead document) or a non-originalist (living breathing document).

An originalist believes that the meaning of the constitution is frozen in time. You may disagree on the interpretation of words, but may not apply the constitution to situations which were not considered by the original drafters.

An non-originalist believes in applying the constitution to situations not considered by the drafters. You are still bound by the words on the page, but you can apply the words to situations that may not have even existed or have been contemplated by the drafters.

The problems arise, at least in my mind, because judges bounce back and forth between the two methods of interpretation when the circumstances present themselves. Like most people judges reach decisions and then try to contort the facts and analysis so that they can reach their predetermined decision.

There are advantages and disadvantages of both view points. For instance, if we consider the constitution a contract with the people the originalist view point is more faithful to that concept. Non-originalists will point out that the framers indicated that they didn't want their intent to be part of the analysis and that non-originalism allows the constitution to evolve to address situations that currently exist.

I am a non-originalist. As to Roe v. Wade, I agree with the result. The right to privacy is not mentioned in the constitution, however the 14th Amendments right to life, liberty and property has been as far back as the late 1800s been interpreted as granting a right to privacy. The court found that this right was broad enough to include a woman's right to choose to abort her fetus. The court recognized that the right was not absolute and that at some point in the pregnancy the unborn's rights would trump that of the mothers.

 

[AM64]

Seems everyone has an opinion on Constitutional law, yet to my knowledge none have a formal education or experience in interpreting it. Lots of armchair quarterbacking going on these days. Opinions are like A-holes.

Checks and balances folks, without it it's not far fetched to believe a dictatorship is right around the corner.

Article (Amendment 1
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

That's pretty simple, straight forward language. Unless you start redefining words - like "speech". All our laws should be written so simply and clearly, but they aren't and that is part of the problem. Ever think that a big part of the legal problem stems from lawyers? Congress is chock full of them, and Congress can't even write a simple understandable law. The judiciary is simply a different kind of KKK - Kluck Kluck Klan made up of clueless clucking biddies in black robes.

 

[ClearwaterVol]

Article (Amendment 1
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

That's pretty simple, straight forward language. Unless you start redefining words - like "speech". All our laws should be written so simply and clearly, but they aren't and that is part of the problem. Ever think that a big part of the legal problem stems from lawyers? Congress is chock full of them, and Congress can't even write a simple understandable law. The judiciary is simply a different kind of KKK - Kluck Kluck Klan made up of clueless clucking biddies in black robes.

The problem, even with what you have described as simple, straight forward language is in the application. For instance, should someone be permitted to yell fire in a crowded theater or should that be an exception to free speech? Should persons be permitted to kill another human if it is in the exercise of their religion? Or do we have an exception to that rule?

Should the press be permitted to publish the names of victims of sexual assault who are minors? Should the members of the Westboro Baptist church be permitted to protest the funerals of veterans within earshot of the service or even at the service if held in a public place?

Your issue with lawyers in congress is naive. The problems with laws now is that they are written and then a hundred changes are made by all different people. The law as codified is radically different than the first version and all these changes tend to make the law more susceptible to interpretation.

 

[joevol320]

You never fail to disappoint, Joe.

it's the truth. you can deflect or laugh, but it's the truth. the left is the party who hates America. they show it every day.

 

[luthervol]

it's the truth. you can deflect or laugh, but it's the truth. the left is the party who hates America. they show it every day.

Saying the left hates America is like saying the right hates humanity.

 

[ClearwaterVol]

it's the truth. you can deflect or laugh, but it's the truth. the left is the party who hates America. they show it every day.

Again, why take the time to analyze the argument when you can just demonize an entire group and assume they all share the exact same opinions.

Many KKK and other white supremacy groups supported Trump. Should I lump you in that segment of society?

 

[AM64]

The problem, even with what you have described as simple, straight forward language is in the application. For instance, should someone be permitted to yell fire in a crowded theater or should that be an exception to free speech? Should persons be permitted to kill another human if it is in the exercise of their religion? Or do we have an exception to that rule?

Should the press be permitted to publish the names of victims of sexual assault who are minors? Should the members of the Westboro Baptist church be permitted to protest the funerals of veterans within earshot of the service or even at the service if held in a public place?

Your issue with lawyers in congress is naive. The problems with laws now is that they are written and then a hundred changes are made by all different people. The law as codified is radically different than the first version and all these changes tend to make the law more susceptible to interpretation.

No, my objection to lawyers in congress isn't naive. I spent many years on and chairing engineering codes and standards groups. It is entirely to write meaningful and precise instructions and rules in clear, concise English. Congress has a propensity to embellish in legalese and an even greater propensity to be imprecise - probably for the protection of the lobbyists who are bribing the members of congress.

When you start reinterpreting simple statements, it opens the path to conflicting bases. For example, you mention killing with regard to religious preference; what if since freedom of "speech" has been twisted to be freedom of expression, someone chooses to kill another as freedom of "speech"? Clarification and limits are one thing - redefinition is another.

Yes, there is a need for the judicial process, but that process like everything must act in moderation. We do have the freedom of speech, but that should not be interpreted to trample the rights of others - if you or I attend a movie or a speech or a funeral we have the right to hear those proceedings and not the voice of someone else at that particular time and place. Freedom does come with an inherent responsibility, and sometimes the judicial branch does have sort out conflicts, but too often the result is more chaos than clarification.

 

[orangeluvr]

they're getting it from the whack job left.

Some of the protesters admitted they voted for t-rump. The whack job right was responsible for The Great Recession and from the looks of the current agenda another one is on the way. Trickle Up Economics. :crazy:

 

[ClearwaterVol]

No, my objection to lawyers in congress isn't naive. I spent many years on and chairing engineering codes and standards groups. It is entirely to write meaningful and precise instructions and rules in clear, concise English. Congress has a propensity to embellish in legalese and an even greater propensity to be imprecise - probably for the protection of the lobbyists who are bribing the members of congress.

When you start reinterpreting simple statements, it opens the path to conflicting bases. For example, you mention killing with regard to religious preference; what if since freedom of "speech" has been twisted to be freedom of expression, someone chooses to kill another as freedom of "speech"? Clarification and limits are one thing - redefinition is another.

Yes, there is a need for the judicial process, but that process like everything must act in moderation. We do have the freedom of speech, but that should not be interpreted to trample the rights of others - if you or I attend a movie or a speech or a funeral we have the right to hear those proceedings and not the voice of someone else at that particular time and place. Freedom does come with an inherent responsibility, and sometimes the judicial branch does have sort out conflicts, but too often the result is more chaos than clarification.

So, what right is superior and where in the constitution can I find this hierarchy of rights?

As for freedom of expression being an equivalent to free speech... It is. So, I can freely march and picket, but, according to you, the moment I raise a sign I am in unprotected areas? Come on. Should the government be able to prevent you from wearing an anti-war arm band? Flag burning?

And lastly, I have had entire trials that hinged on how the Florida Building Code is to be interpreted. The FBC section in question was written by a group of engineers. I retained the engineer that wrote the section and the jury disagreed with some of his interpretation.

 

[AM64]

So, what right is superior and where in the constitution can I find this hierarchy of rights?

As for freedom of expression being an equivalent to free speech... It is. So, I can freely march and picket, but, according to you, the moment I raise a sign I am in unprotected areas? Come on. Should the government be able to prevent you from wearing an anti-war arm band? Flag burning?

How is it the same as free speech? An arm band is like a banner or a sign - a document proclaiming something - burning something whether a flag or a building is simply destruction of an object. It seems fairly clear that the original guys considered "speech" pretty much in the same manner as the very words they were using in the document - coherent use of language to express thought or sentiment. So far as a right to picket and demonstrate the words they used were "peaceful assembly". But does your right to peaceful assembly trample my rights to move about freely?

We have a process to change law and it originates from the choosing of representatives/delegates to do so; we can even amend the Constitution. However, that comes from the duly elected representatives not by guys in black robes setting themselves up as tin gods passing down commandments and usurping the process.

 

[orangeluvr]

And that's avoiding the question.

Do you think the Judicial Branch should have the power to do such things? Like Roe v. Wade was policy made from the bench.

Roe v. Wade was upheld by nixon appointee Chief Justice Warren Burger and the three associate justices he appointed . Two of the dissenters were his appointments. 7-2 decision.

 

[ClearwaterVol]

How is it the same as free speech? An arm band is like a banner or a sign - a document proclaiming something - burning something whether a flag or a building is simply destruction of an object. It seems fairly clear that the original guys considered "speech" pretty much in the same manner as the very words they were using in the document - coherent use of language to express thought or sentiment. So far as a right to picket and demonstrate the words they used were "peaceful assembly". But does your right to peaceful assembly trample my rights to move about freely?

We have a process to change law and it originates from the choosing of representatives/delegates to do so; we can even amend the Constitution. However, that comes from the duly elected representatives not by guys in black robes setting themselves up as tin gods passing down commandments and usurping the process.

It might surprise you to know that the framers intended that the freedom of speech encompassed a freedom of expression. That not withstanding, typically one has the unfettered right to destroy his own property. Furthermore, the speaker (flag burner) is making a symbolic expression of his speech.

As for your question which I assume was spurred by the recent protesters blocking roadways... I believe said protesters should be arrested and prosecuted. The laws regarding blocking traffic are content neutral and clearly designed to promote the free flow of traffic. The protesters may feel that it is an expression, but the expression is preventing others from their right to free travel and possibly endangering the public because emergency vehicles are also being delayed.

Now, as to the judges making law... that is always the opinion of the people that disagree with the court. Interpreting free speech to encompass symbolic expressions of that speech isn't making law it's interpreting what we've already got.

 

[AM64]

It might surprise you to know that the framers intended that the freedom of speech encompassed a freedom of expression. That not withstanding, typically one has the unfettered right to destroy his own property. Furthermore, the speaker (flag burner) is making a symbolic expression of his speech.

As for your question which I assume was spurred by the recent protesters blocking roadways... I believe said protesters should be arrested and prosecuted. The laws regarding blocking traffic are content neutral and clearly designed to promote the free flow of traffic. The protesters may feel that it is an expression, but the expression is preventing others from their right to free travel and possibly endangering the public because emergency vehicles are also being delayed.

Now, as to the judges making law... that is always the opinion of the people that disagree with the court. Interpreting free speech to encompass symbolic expressions of that speech isn't making law it's interpreting what we've already got.

We at least agree on a few things - that some actions do trample on other's rights. However, if I decided to burn my house (even if I didn't try to file an insurance claim) to express my aversion to property taxes, I have a feeling that wouldn't be looked at as an "unfettered right". I similarly don't see burning a flag in the middle of a crowd as a safe act or falling outside the requirements for a burn permit, etc.

 

[ClearwaterVol]

We at least agree on a few things - that some actions do trample on other's rights. However, if I decided to burn my house (even if I didn't try to file an insurance claim) to express my aversion to property taxes, I have a feeling that wouldn't be looked at as an "unfettered right". I similarly don't see burning a flag in the middle of a crowd as a safe act or falling outside the requirements for a burn permit, etc.

There are situations in which I would be fine with prosecuting a flag burner such as endangering others, but I do not want that law used as a means to simply squelch the act.

 

[hndog609]

The problem, even with what you have described as simple, straight forward language is in the application. For instance, should someone be permitted to yell fire in a crowded theater or should that be an exception to free speech?

The yelling fire bit was a dictum and at no point had any authority of law. Moreover the Schenck case took quite a beating and was basically eliminated by later rulings. I believe Holmes even distanced himself from that interpretation.

I'm extremely dubious of "living document" interpretations when the only people in the position to make that call are the ones doing the interpreting. There's an awful lot of "foxes guarding the hen house" mojo going on there.

 

[ClearwaterVol]

The yelling fire bit was a dictum and at no point had any authority of law. Moreover the Schenck case took quite a beating and was basically eliminated by later rulings. I believe Holmes even distanced himself from that interpretation.

I'm extremely dubious of "living document" interpretations when the only people in the position to make that call are the ones doing the interpreting. There's an awful lot of "foxes guarding the hen house" mojo going on there.

It absolutely has not been overruled. Today it is likely that a court would reach the opposite conclusion regarding the protections granted the plaintiff in that case, but the analysis remains the same. The passage I alluded to is still the standard bearer for free speech questions. The right to free speech is not absolute and courts must determine whether prohibitions on free speech pass constitutional muster.

 

[hndog609]

It absolutely has not been overruled. Today it is likely that a court would reach the opposite conclusion regarding the protections granted the plaintiff in that case, but the analysis remains the same. The passage I alluded to is still the standard bearer for free speech questions. The right to free speech is not absolute and courts must determine whether prohibitions on free speech pass constitutional muster.

There's a difference in "absolute" which by definition includes any and all possible parameters and the "yelling fire" example. How much of Schenck was left after Brandenburg v Ohio you reckon?

 

[Septic]

where are the checks and balances for judges? they obviously have none

Obama Administration Dept of Justice lost 55% of the time in front of SCOTUS.

As if by magic, suddenly and shockingly the federal courts need to be reigned in.

I wonder what happened?

 

[ClearwaterVol]

There's a difference in "absolute" which by definition includes any and all possible parameters and the "yelling fire" example. How much of Schenck was left after Brandenburg v Ohio you reckon?

As I stated, Schenk if heard today would require a different decision. Plaintiff would have prevailed, but do you believe that the example of yelling fire in the crowded theater would be protected now?

The standard for examining whether free speech may be impinged set forth Schenk is whether the speech poses a clear and present danger. A subsequent opinion expanded the government's ability to restrict free speech with a test that said something along the lines of if the speech had the tendency to lead to law breaking then the law should be upheld. The Brandenburg court simply modified the Schenk holding the clear and present danger test had to include that the speaker the intent to cause the lawlessness, that the likelihood of the listeners taking said action is great and that the requested acts be imminent. So essentially, Brandenburg further restricted the government's ability to restrict speech by incorporating a time element into the Schenk court test.

So, while I believe Schenk would come out differently, I also believe that much of its reasoning remains.

 

[hog88]

I'm your hukleberry.

There are two basic ways to interpret the constitution which both have advantages and disadvantages. You can be an originalist (dead document) or a non-originalist (living breathing document).

An originalist believes that the meaning of the constitution is frozen in time. You may disagree on the interpretation of words, but may not apply the constitution to situations which were not considered by the original drafters.

An non-originalist believes in applying the constitution to situations not considered by the drafters. You are still bound by the words on the page, but you can apply the words to situations that may not have even existed or have been contemplated by the drafters.

The problems arise, at least in my mind, because judges bounce back and forth between the two methods of interpretation when the circumstances present themselves. Like most people judges reach decisions and then try to contort the facts and analysis so that they can reach their predetermined decision.

There are advantages and disadvantages of both view points. For instance, if we consider the constitution a contract with the people the originalist view point is more faithful to that concept. Non-originalists will point out that the framers indicated that they didn't want their intent to be part of the analysis and that non-originalism allows the constitution to evolve to address situations that currently exist.

I am a non-originalist. As to Roe v. Wade, I agree with the result. The right to privacy is not mentioned in the constitution, however the 14th Amendments right to life, liberty and property has been as far back as the late 1800s been interpreted as granting a right to privacy. The court found that this right was broad enough to include a woman's right to choose to abort her fetus. The court recognized that the right was not absolute and that at some point in the pregnancy the unborn's rights would trump that of the mothers.

I would fall into the originalist category except that I don not consider it a "dead document" since the framers clearly outlined procedures for it to be amended. Now, amending the constitution isn't easy and I don't believe it was meant to be.

 

[ClearwaterVol]

I would fall into the originalist category except that I don not consider it a "dead document" since the framers clearly outlined procedures for it to be amended. Now, amending the constitution isn't easy and I don't believe it was meant to be.

That is fine. I respect that, but I think the opposing view is just as valid and respects the constitution as well.

 

[hndog609]

As I stated, Schenk if heard today would require a different decision. Plaintiff would have prevailed, but do you believe that the example of yelling fire in the crowded theater would be protected now?

The standard for examining whether free speech may be impinged set forth Schenk is whether the speech poses a clear and present danger. A second opinion expanded the governments ability to restrict free speech with a test that said something along the lines of if the speech had the tendency to lead to law breaking then the law should be upheld. The Brandenburg court simply modified the Schenk holding clear and present danger test had to include that the speaker the intent to cause the lawlessness, that the likelhood of the listeners taking said action is great and that the requested acts be imminent. So essentially, Brandenburg further restricted the government's ability to restrict speech by incorporating a time element into the Schenk court test.

So, while I believe Schenk would come out differently, I also believe that much of its reasoning remains.

I humbly submit there's nothing "simply" about the boldened. I can't remember the persons name but for his lectures he'd actually open by yelling "Fire!" a few times to set the stage for how poor and misused that example is in free speech discussion.

The idea that there aren't any limits to free speech go out the window by the mere existence of slander. The point I was making is that the "yelling fire" and analogous examples are almost always specious in their use and of pretty dubious worth in even their best applications when applied to freedom of speech.

 

[AM64]

I humbly submit there's nothing "simply" about the boldened. I can't remember the persons name but for his lectures he'd actually open by yelling "Fire!" a few times to set the stage for how poor and misused that example is in free speech discussion.

The idea that there aren't any limits to free speech go out the window by the mere existence of slander. The point I was making is that the "yelling fire" and analogous examples are almost always specious in their use and of pretty dubious worth in even their best applications when applied to freedom of speech.

I'll add a similar thought. If Clearwater believes that burning a flag during a demonstration is an appropriate means to symbolize a thought, then why not fireworks? And if some judge doesn't overrule that, then why not guns fired into the air or why not burning gasoline in a bottle?

The problem gets down to nitpicking and second guessing everything in the name of "interpretation" by judges. And the initial instance becomes a little bit ex post facto if the ruling goes against somebody testing the limits because there don't seem to be limits. And it's all about judge shopping - get that first ruling and it's like overturning a call in football.

 

[ClearwaterVol]

I humbly submit there's nothing "simply" about the boldened. I can't remember the persons name but for his lectures he'd actually open by yelling "Fire!" a few times to set the stage for how poor and misused that example is in free speech discussion.

The idea that there aren't any limits to free speech go out the window by the mere existence of slander. The point I was making is that the "yelling fire" and analogous examples are almost always specious in their use and of pretty dubious worth in even their best applications when applied to freedom of speech.

Is slander enumerated in the Constitution or is it just an accepted limitation on constitutional language that contained no such limitation?

 

[hndog609]

Is slander enumerated in the Constitution or is it just an accepted limitation on constitutional language that contained no such limitation?

Slander (we can go ahead and put libel in there too) is nothing more than the malicious harming of others that happens to fall under the purview of speech. Such malice is not and should not be protected any more than any other deliberate or reckless act that causes harm. Hell, it's not like the idea of defamation didn't precede the Constitution. I don't think this argument advances your position much.

And while we're on the topic let's not be at cross purpose. I've never posited that there aren't limitations out there. (speech or otherwise) My point has been sometimes, as in the case of the "yell fire" example, interpretations can get pretty lazy (again, that little quip has taken a severe beating) or even somewhat WTF. Keeping an eye toward strict interpretation lessens the ability and scope of what people call "legislating from the bench" and that's fine with me. Precedent is a damned dangerous thing and anything that keeps "personal" interpretations on a short leash is almost always for the better in my book. Beyond that you'd have to be drilling down deep in very specific case by case examples.