> -----Original Message----- > From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On > Behalf Of jdiebremse > Sent: Monday, November 06, 2006 9:49 AM > To: Killer Bs Discussion > Subject: Re: Gay marriage in the closet > > > > --- In [EMAIL PROTECTED], Charlie Bell <[EMAIL PROTECTED]> wrote: > > I'm guessing the server problems with Brin-L ate the end of the > > previous thread on this topic, but I still haven't heard a good > > argument for discrimination on gender preference for marriage. > > Except that the previous thread didn't discuss that question at all. > > > The question was not whether legalized gay marriages were a good idea, > the question was whether legalized gay marriages should be imposed by > the courts. > > This is the single-biggest difference between liberals who advocate > judicial activism and conservatives who advocate judicial restraint. > The former seem to take the position that Court decisions can be driven > by whether or not something is a good idea. The latter insist that the > Courts should stick to interpreting the law; recognizing that the law > may occasionally be immoral, unjust, or just plain a bad idea; but that > under our system of government, the writing of laws is reserved for the > legislative branch of government.
I think I understand the general position you are arguing. I'm almost certain I understand one point you are making: that arguing that the courts have no right to overturn certain laws is not saying that those laws are good. For example, if true pacifists were elected to the majority in both houses of Congress and to the presidency and passed a law eliminating the US armed forces, you would argue strongly against that law, think it was a very very bad idea, but would not want it overturned as unconstitutional because it violated the preamble of the Constitution's requirement to "provide for the common defense." So, as I try to explore the topic of judicial activism with you, I will not assume that because you think that a law feel should not be overturned in the courts that you think the law is good. If it sounds like I'm stating that, I hope you will not take it that way....that you will accept it as: you feel that a given law or action is consistent with the Constitution...and that I'm just writing in a shorthand manner. There are a few initial questions that I have. First, are you arguing for original intent, or do you accept judicial history as law? For example, do you think the Supreme Court is legally obliged to overturn 140 or so years of precedent and restrict the power balance between the states and the federal government to what it was before 1860? Or, do you accept the last 140 years of rulings as part of the law which the Court needs to consider? A parallel question involves the authority of the Commander-in-Chief. Court rulings after the Civil war expanded this power far beyond what a straightforward reading of the Constitution gives. Even though I think Bush is pushing this power too far, I would not want to go all the way back to original intent. Would you argue that original intent must be implemented here too? The other thing I wanted to consider in this post is the earliest decisions that started the complaints about "judicial activism." The classic one I'm considering is "Brown vs. the Board of Education." I think we can agree that separate but equal was, in most cases, separate but unequal. That was accepted for about 80 years after reconstruction as consistent with the 14th amendment. Jim Crow laws were also approved as consistent with the 14th amendment. "The right of free association" was accepted as the base for widespread discrimination against blacks....because no one should be forced to associate with people they didn't want to in any way. I know that you think the end of segregation was a good idea. But, do you think that the Brown vs. Board of Education ruling was judicial activism? Do you think that Jim Crow laws, although morally repugnant, were constitutional? Dan M. _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
